A High Court judge ruled last week that doctors could legally stop treating Archie Battersbee, but lawyers for the family argued in court on Monday that a higher burden of proof should have been used.
They also questioned whether Mrs Justice Arbuthnot considered the youngster’s religion before making her decision on June 13.
Archie has been in an induced coma since being discovered unconscious at home on April 7, but his parents, Hollie Dance and Paul Battersbee of Southend, Essex, believe his heart is still beating and have petitioned the Court of Appeal.
Ms Dance and Mr Battersbee, who are divorced, asked Mrs Justice Arbuthnot for permission to file an appeal at a High Court hearing on Monday.
Before a full appeal hearing could be held, they had to establish that they had an arguable or compelling case.
A barrister who led their legal team argued that the evidence did not prove Archie’s death “beyond reasonable doubt.
According to Edward Devereux QC, the decision was made on the basis of a balance of probabilities.
He contended that a decision of this “gravity” should have been made “beyond reasonable doubt.”
Mrs Justice Arbuthnot decided that the standard of proof issue should be considered by appeal judges.
She claimed that the Court of Appeal had never considered the standard of proof issue in “declaration of death” cases.
According to the judge, that issue provided a compelling reason for appeal judges to consider the case.
Doctors at the Royal London Hospital treating Archie believe he is “brain-stem dead,” according to Mrs. Justice Arbuthnot.
They believe Archie’s treatment should come to an end and that he should be removed from the ventilator.
Archie’s parents say his heart is still beating and that he should continue receiving treatment.
Lawyers for the Royal London Hospital’s governing trust, Barts Health NHS Trust, asked Mrs Justice Arbuthnot to decide what steps were best for Archie.
