06:52, May 10 165 0 theguardian.com

2018-05-10 06:52:09
Alfie's law could undo decades of progress on children's rights

There can be few parents unable to imagine going to the ends of the earth to save the life of a deeply loved child. But can this love know no bounds? Last month, former Ukip leadership challenger Steven Woolfe MEP and Parliament Street thinktank launched a national campaign for Alfie’s law to “re-empower parents”. Many decades of progress in establishing the rights of children – as human beings with individual worth and integrity – could be undone were such a call to be taken seriously.

Alfie Evans’ tragically short life has been framed by Woolfe, the Christian Legal Centre and others as a parents-v-state battle. Hours before Alfie’s death, standing near the Houses of Parliament, Woolfe spoke of his goal that “no more is the state regarded as the champion of the child, when it’s the parents who should be the champion of the child”. Leaving aside the fact that it was the courts – not the state – that had the task of painstakingly considering what would be in Alfie’s best interests, Woolfe appeared to be arguing that parents should (once again) be able to exercise unfettered power over their children, including when decisions and actions run counter to the child’s human dignity.

There was consensus of medical opinion between Alder Hey children’s hospital, the child health professor asked to conduct an independent review by the NHS trust and the range of experts brought in by Alfie’s parents; in the words of the high court judge, all “agreed the degeneration [in Alfie’s brain was] both catastrophic and untreatable”.

Mr Justice Hayden had to decide whether it was in Alfie’s best interests to be removed from artificial ventilation in the hospital where he had been cared for since he was seven months old. Or if he could be transferred to Rome and, if necessary, moved from there to a hospital in Munich and, if this also failed, returned home to die.

The high court judge came “reluctantly and sadly to one clear conclusion”: that “Alfie’s need now is for good-quality palliative care”. Allowing Alfie to travel was declared contrary to his best interests – a decision supported by the appellate courts. In the last ruling, two days before Alfie died, the court of appeal reaffirmed there “can be no derogation” from the “legally entrenched principle” that the best interests of the child prevails.



The supreme court had earlier, and succinctly, set out the evolution of children’s law, showing that parents do not have unlimited rights when this is contrary to the child’s best interests. In a previous hearing, it had rejected the argument that Alfie’s parents had suffered discrimination in the enjoyment of their right to respect for family life because the authorities had neither considered nor decided that Alfie would suffer significant harm if removed from Alder Hey. This is the usual threshold for the state intervening to protect a child.

The court’s answer to this discrimination claim was that the child’s best interests is the gold standard by which decisions about children’s care and treatment are made. Where a local authority seeks to intervene to protect a child, including by taking over their care, there is “an initial hurdle”: the court must be satisfied that there has been significant harm, caused by parents’ actions or omissions. This wasn’t the case in Alfie’s situation.

This was never about child abuse or parental neglect. A little boy was gravely ill and had no prospect of recovery. The medical team looking after him believed it was not in his best interests to prolong life support and wished to move him to palliative care. His parents disagreed, so the hospital went to court. In the high court, Mr Justice Hayden respectfully summarised the agonising position of Alfie’s father:

His core dilemma, from which he struggles to escape, is that whilst he recognises and understands fully that the weight of the evidence spells out the futility of Alfie’s situation, he is, as a father, unable to relinquish hope. This is to my mind entirely understandable.

Contrary to Woolfe’s assertion, domestic and international law is predicated on parents being the first and foremost champions of their children. But we have moved a long way, legally and culturally, from the concept of children as chattel. Parents no longer have unconstrained rights or powers. Although children are dependent and vulnerable, profoundly reliant upon parental love and nurturing, we have come to respect them as individuals with mental and physical integrity. Parents can never be “re-empowered” to the extent that the human worth and dignity of children is denied. When children lack capacity, and terrible choices have to be made about their health and wellbeing, parents are usually the sole decision-makers. It is only when intractable conflict occurs between parents and doctors that courts are invited to arbitrate on what is best for the child.

Mediation between Alder Hey and Alfie’s parents was tried but failed. In the final hearing, Alfie’s parents were separately represented and his mother’s counsel introduced new legal arguments about EU law trumping the paramountcy of the best interests of the child.



None of the subsequent, extensive legal challenges proved able to uproot the high court judge’s decision that Alfie’s overarching need was for “peace, quiet and privacy in order that he may conclude his life, as he has lived it, with dignity”. It is difficult to see what more could be gained – for children – from a law in this much-loved child’s name.

  • Carolyne Willow is the director of children’s rights charity Article 39

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