Well this is a thorny question and one which attracted our attention on a “back to work” trawl of recent cases ready for our next round of updates. We thought we’d share it with you together with our very best wishes for a great 2022.

The court had to consider the best interests of a child in the tragic case of Fixsler and another v Manchester University NHS Foundation Trust [2021]. The parents of a child who had suffered catastrophic brain injuries at birth appealed the decision of the hospital trust that it would be in their daughter’s best interest to stop treatment which kept her alive. The parents were Hasidic Jews and their religious identity drove their response to the terrible circumstances in which they lived. The parents wanted the opportunity to move their daughter to Israel for treatment and welcomed the fact that were she to die in Israel she would be buried in accordance with their religious beliefs. The hospital felt that the journey would cause the child pain and that it was in her best interests to allow her to die.

The interesting part of the judgment was that while the judge noted that an assessment of best interest had to take into account the ethnic and belief background the judge looked at matters from the point of view of the child. The judge was entitled to take the view that there was no certainty that the child would share her parents’ beliefs and opinions, she had never had an opportunity to learn about her cultural background. When the judge looked at all the circumstances and weighed the presumption of the need to preserve life against the likelihood of suffering he concluded that treatment could be withdrawn.

The regard given to the fact that the child may not have shared her parents cultural and religious views feels very twenty-first century. Could this be an interesting point for an essay? Maybe!