In search of a chimera: the best interests’ test in determining life or death for Baby A

Mary Welstead CAP Fellow Harvard Law School; Visiting Professor in Family Law University of Buckingham

Determining the fate of a seriously brain damaged baby is one of the most difficult tasks a judge ever has to undertake. It is therefore understandable that the judiciary has searched for so-called legal principles which might make their task a little less distressing. Unfortunately such principles have proven to be elusive. The reality is that the best interests’ approach is fact based and context specific and can hardly be said to be based on legal principles.

Hedley J’s approach in Portsmouth NHS Trust v Wyatt and Wyatt Southampton NHS Trust Intervening (2005) was that the best interests’ test was based on: ‘… some of the fundamental principles that undergird our humanity. They are not to be found in Acts of Parliament or decisions of the courts but in the deep recesses of the common psyche of humanity whether they be attributed to humanity being created in the image of God or whether it be simply a self-defining ethic of a generally acknowledged humanism.’

He might have put it more strongly and...