Barrister Blogger published an analysis of the case - Mr Justice Hayden was right to bring Archie’s futile treatment to an end. – BarristerBlogger and Joshua Rozenberg wrote Unforced errors by Archie’s lawyers - by Joshua Rozenberg.
The Rozenberg article attracted a comment by Edward Devereux QC who was leading counsel for Archie's parents (Hollie Dance and Paul Battersbee). Advice given by lawyersto their clients is covered by legal professional privilege and that privilege belongs to the client. Mr Devereux rightly revealed nothing about such advice but one paragraph in the comment stood out -
An Online Safety Bill has been before Parliament for a considerable time. It is a lengthy Bill of 12 parts, 197 clauses, 15 Schedules and it attempts to impose duties of care on what are referred to as "regulated user-to-user" services and also to impose certain "Children's risk assessment duties" and safety duties protecting children.
Legislators would do well to consider whether their convoluted Bill - (and it is not easy reading) - would actually address the type of challenge that Archie appears to have been engaged in.
2] On 3 August, the European Court of Human Rights issued a press release stating why it did not accept the request by Archie's parents for interim measures. The Press Release stated -
"The Court (the President) today 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)."
This simply does not explain adequately why it was decided not to issue the interim measure sought but the E Ct HR gives States a considerable margin of appreciation in relation to decisions concerning life-sustaining treatment - see for example Guide to Article 2 (Right to Life) at paragraph 75.
Having rejected the interim measure, the press release then stated - "It also decided ..." and went on to refer to admissibility.
It appears that the court considered that it did NOT have jurisdiction to accept the case because of Article 35. At least, Article 35 was clearly a factor. It might have been better for the court to clearly explain what impact Article 35 had on the case. Instead we are left with fudge. Would any future cases be ruled inadmissible if the UN Committee on the Rights of Persons with Disabilities had been approached? That certainly seems to be distinct possibility.
7 November 2022: