In the matter of R (A Child)

Case summary

Case ID

UKSC/2025/0193

Parties

Appellant(s)

MC and ML

Respondent(s)

The Trust

Issue

Did the Court of Appeal err in holding that where the High Court is called upon to determine whether or not a child is dead according to neurological criteria, the Court is entitled as a matter of discretion not to make that child a party to proceedings?

Facts

This appeal concerns R, a twelve-year old girl who suffered hypoxic brain injury on 30 October 2025 and was diagnosed by doctors as being brain-stem dead on 4 November 2025. The Appellants are R’s parents. They do not accept that R is dead because they do not accept that the brain-stem tests performed to diagnose death by neurological criteria were performed with adequate rigour and because their religious beliefs only recognise death as occurring when the heart stops beating. An urgent hearing came before the High Court on 7 November. At the outset of the hearing the Judge decided not to make R a party to the proceedings. Following a substantive hearing of the medical evidence, the Judge declared that R had died on 4 November 2025 and that it would be lawful for all ventilation and other intensive care support to be withdrawn. R's parents appealed to the Court of Appeal on two grounds: first, that the Judge erred in not making R a party to proceedings; and second that the Judge erred in not adjourning proceedings to allow the parents to obtain legal representation. The Court of Appeal allowed the appeal on the second ground. On the first ground, the Court of Appeal held that the Judge had discretion as to whether to make a child a party to proceedings and this discretion had been properly exercised. The matter was remitted for a directions hearing which took place on the 21 November. At that hearing the Judge found that he was bound by the Court of Appeal’s decision on the first ground and therefore declined to make R a party to proceedings. Following the substantive hearing, the Judge made a declaration of death and declared that all medical treatment was to be withdrawn from R by 12 noon on Friday 28 November 2025. The Appellants now appeal to the Supreme Court the against Court of Appeal’s decision on the first ground.

Date of issue

2 December 2025

Case origin

PTA

Permission to Appeal

Justices

Lord Reed

Lord Hodge

Lord Stephens

Permission to Appeal decision date

28 November 2025

Permission to Appeal decision

Refused

Lord Reed, President of the Supreme Court, Lord Hodge, Deputy President of the Supreme Court, and Lord Stephens have considered this application by R’s parents for leave to appeal to the Supreme Court. The Justices have scrutinised with care the reasoning of the judge, Mr Justice Hayden, and of the Court of Appeal, and have carefully considered the submissions in relation to this application. The Justices have the greatest sympathy for R’s parents in the tragic circumstances that have befallen their family. The Justices entirely understand their distress and respect their religious beliefs. It is nonetheless the Justices’ duty to apply the law. Mr Justice Hayden has granted an order declaring that R died at 16:45 hours on 4 November 2025. The Court of Appeal has refused leave to appeal against that order. It follows, under section 54(4) of the Access to Justice Act 1999, that this court has no jurisdiction to hear an appeal against Mr Justice Hayden’s order. The declaration that R has died is therefore final. Permission is sought to appeal against one aspect of an earlier order of the Court of Appeal, in which it dismissed a ground of appeal against an earlier order. The ground of appeal was based on the proposition that R should have been joined as a party to the proceedings. Before the Court of Appeal, it was agreed by those acting on behalf of R’s parents that the court had a discretion whether to join R as a party, as the relevant rules of procedure indicate. Rule 16.2(1) of the Family Procedure Rules 2010 provides: “(1) The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so.” The Court of Appeal held that the judge was entitled to decide, in the exercise of his discretion, that it was not necessary to join R. The Court of Appeal set out its reasons for reaching that conclusion, including that it was unnecessary for the child to be joined in order for the relevant rights and interests to be fairly and properly addressed. Her parents were entitled to legal aid, and the court could seek additional assistance from CAFCASS as an advocate to the court if that were necessary. That decision is now challenged on the ground that the Court of Appeal erred in holding that the court had a discretion whether to make the child a party to the proceedings. It is argued that it was obligatory to make R a party. This is said to follow, in particular, from common law principles of natural justice, and from article 6 of the European Convention on Human Rights. As we have explained, the fact that the court possessed a discretion whether to join the child as a party was conceded before the Court of Appeal. There was no contention that any legal principle, whether of domestic law or derived from the Convention, required a different result. It would be wholly exceptional for this court to grant permission to appeal against a decision on a point which was conceded before the court below. It would also be exceptional for this court to grant permission to appeal where the arguments to be advanced were not advanced before the court below. In addition, the outcome of any appeal in the present case could not alter the order declaring R to have died: as we have explained, this court has no jurisdiction to hear an appeal against that order. The proposed appeal would therefore be an essentially academic debate on a point of law, on which this court would not have the benefit of the views of the courts below. We sympathise with R’s parents and hope that they will find comfort and support from their faith and their community. No one questions their devotion to R. However, we are fully satisfied that permission to appeal to the Supreme Court must be refused, since the proposed appeal does not raise an arguable point of law of general public importance which the court ought to hear at this time.

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