Here are four reflections on the Charlie Gard case.
The Judge
Sir Nicholas Francis has been a High Court judge for less than a year. With the world watching his every step, he does not seem to have put a foot wrong, and he did well to have a clean copy of his judgment, ready for release, when the case reached its climax yesterday. Other judges might have taken robust action when Charlie’s parents let their emotions spill over in court, but I believe he was right to let things ride. In 18 years on the Bench I only had one comparable experience – and then I was one of three judges in the “life and death” Conjoined Twins case from Malta. In those days, we did not have running commentary by tweet from court: instead, Channel 4 hired actors to read the court transcripts every night. The emotional (as well as the intellectual) strain on the judge of a case like this cannot be overstated
Technology and the courtroom
The case has been notable for showing off the best and the worst aspects of modern technology. For the best, we had Joshua Rosenberg’s stream of tweets from court, and the almost instantaneous publication on the Internet of the judge’s two judgments and Great Ormond Street’s two poignant position statements[1], which enabled us all to read what was being said or written without having to rely on a not always reliable “messenger speech” via the media. For the worst, we had the unspeakably vile trolling. In the old days an English court had power to order a troll to be sentenced to corporal punishment, and, in an earlier age still, to a stint in the stocks where the populace could throw rotten vegetables at him/her. I am not suggesting for one moment that either of these remedies should be restored to the statute book, but “short, sharp, shock punishments” are surely called for in order to try and bring this contemporary beastliness under control. Fifty years ago Mr Justice Salmon’s four-year exemplary prison sentences on nine young Notting Hill race rioters brought that problem to an (at any rate temporary) end. This is what exemplary sentences are all about.
Legal Aid
Because of Treasury paranoia about the size of the legal aid bill getting out of control, the Legal Aid Agency now has no discretion to grant legal aid to Charlie’s parents in a case like this if it does not fit into the Procrustean codified rules which Parliament enacted five years ago.[2] Fortunately, his parents secured the pro bono services of lawyers who put their client’s case before any thought of financial reward: but as the judge suggested, it cannot be right if legal aid is available when a local authority brings proceedings in relation to a child, but not when a hospital trust does so. This is just one of the many cruel anomalies the Bach Commission has identified in the course of an 18-month study, which will culminate with the publication of our report in September.
At least Charlie’s parents had the help of lawyers who would have advised them from the outset that by English law (mirroring the provisions of the United Nations Convention on the Rights of the Child) the best interests of the child are treated as paramount. This advice is not now available (by way of an initial two hours of legal help, at a fixed fee of £86) to the thousands of parents whose partnership/ marriage is foundering and who set off to sort things out with their estranged partner as best they can with no guidance at all on the governing principles of family law. Here is a “taster” of the evidence we received:
“A very experienced family lawyer said that people usually see family lawyers when they are in distress. The absence of any ability to give early advice on the governing principles has meant that a great many people have been unable to look after themselves and their family at all adequately. In the old days, a mother might permit contact if she could obtain a Prohibited Steps Order to prevent the father from keeping the child after the contact was over. Now mothers were deciding not to permit contact at all, because it was altogether too risky given that she could not now obtain legal aid to get the children back if they were not returned to her.
A mother will receive no “upfront” legal advice about the child’s best interests being paramount, or how the courts view family law cases. As a result, children lose out. They will not receive public funding themselves. As a result, [the lawyer] believes, LASPO [the Legal Aid, Sentencing & Punishment of Offenders Act 2012] has not only eroded access to justice by downgrading the rights of individuals (especially children), but it will also change the fabric of society as things go on.”
Mediation
Towards the end of the case the judge strongly advocated mediation in cases like this. As an experienced mediator, I know that there are cases that give rise to such emotional intensity that even the most skilful of mediators can only hope that the process may at the very least enable the parties (or their lawyers) to understand each other better. I remember meeting Katie Gollop, who acted for Great Ormond Street in the recent case, in a clinical negligence mediation in, I think, Manchester which presented all the familiar signs of unresolvability. On the other hand, I have successfully mediated a number of anxious cases in the field of medical law where the starting odds on a settlement were about ten to one against. At all events, I am glad the judge said what he did.
[1] See www.gosh.nhs.uk/file/23731/download?token=TWJkSxZu for the second position statement.
[2] Unless, that is, with the aid of a lot of whisky and a towel round one’s head their lawyer could steer between Scylla and Charybdis and conjure up a persuasive case for exceptional case funding.
Henry Brooke 
To the reflections, I would only add that, as a medical doctor, I am frequently faced with a situation where limited resources require me to make difficult choices. Rarely, these can be very stark, for instance working on a night-shift as the only medic on-call and being faced with a situation where two patients on opposite sides of the hospital are in extremis. However, more routinely, we face a scenario where we could, for instance, provide round-the-clock care for a patient so that he/she is able to go home and die surrounded by their loved ones, but this would mean leaving a hospital under-staffed and putting at risk a whole ward of patients for the sake of that one patient. We have developed ethical frameworks for dealing with these situations which may seem callous to the public, but are designed to preserve health and life to the best of our ability for as many as possible with limited resources.
The point that legal aid should be available to parents if a hospital trust brings proceedings, just as it should be when a local authority brings proceedings, is obviously valid. Parents must be empowered to counter unjust decisions regarding their children, particularly where these involve custody. On the other hand, we must be aware that the power dynamics with a local authority and hospital trust can be very different. Hospital trusts are daily required to make decisions not only on child safety (as are local authority social services) but also on modalities of treatment and even futility of treatment, and the financial burden of legal action by parents could fall more heavily on them. Furthermore, hospital trusts are not able to increase council tax in response to increased litigation burden, and the current existential threat to the NHS is a political reality of some consequence.
Kind regards,
Moosa
LikeLike
Thank you, Moosa, for this thoughtful contribution. In my remarks about legal aid, I was concerned only with the case in which it is the hospital trust that is invoking the jurisdiction of the court after there has been a breakdown in relations. In the same way that legal aid is available to a parent when a local authority invokes the court’s jurisdiction in care proceedings, it seems only fair for legal aid to be available to a parent when it is a hospital that initiates proceedings.
I believe there are other issues here about financial eligibility for legal aid, which I was not addressing.
LikeLike
Pingback: Charlie Gard: the wider implications | Law & Religion UK
While I do not know the rules on legal aid can I suggest this case would be a poor example as to why the availability should be changed.
As an example if parents send a child to school and they learn 2+2 = 4 but the parents have a guru who says 2+2=5 should the parents get legal aid to challenge the school?
To understand this case you should read
View at Medium.com
There was never a treatment.
If you would like more on the mechanism of the condition I can provide them.
The case wasted a lot of money which could have been better spend on treatment of others.
LikeLiked by 1 person
http://www.medium.com/@charlesarthur/charlie-gard-facts-medicine-and-right-wing-fictions-e4b933ed8c12
This is the link you kindly provided, which is very well worth reading. Thank you.
As to legal aid, it was the hospital which instituted the court proceedings, not the parents. Fairness demanded that they should be enabled to defend themselves – and to permit the judge to rule after hearing both sides of the argument This is particularly important when a little child’s life is in issue.
LikeLike
Pingback: Law and religion round-up – 30th July | Law & Religion UK
Of course, my heart goes out to all involved, including the legal teams (see the expression on the face of the parents’ solicitor as Connie Yates made her statement at the court’s door) and it goes out to the judge. My following comments are not criticisms of anyone.
Had the case occurred in pre open days – say before about 2014 – there would have been virtually no publicity, no splendid string of tweets, little or no commentary here or from the US. The lack of ‘justice being seen’ perhaps would have led to the child’s best interests being protected.
Children Act 1989 Sec 2
“…the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”.
The case started in February. In June the Supreme Court said
“Every day since 11 April 2017 the stays have obliged the hospital to take a course which, as is now clear beyond doubt or challenge, is not in the best interests of Charlie. The hospital finds itself in an acutely difficult ethical dilemma: although the stays have made it lawful to continue to provide him with AVNH, it considers it professionally wrong for it to have continued for over two months to act otherwise than in his best interests.”
And:-
“We three members of this court find ourselves in a situation which, so far as we can recall, we have never previously experienced. By granting a stay, even of short duration, we would in some sense be complicit in directing a course of action which is contrary to Charlie’s best interests”
And on it went.
Justice would have been denied to the parents – they almost certainly would not have been able to seek crowd funding.
The judge, presumably with an eye on the CA ‘no order’ principle, dealt with the matter by Declarations. The hospital, in their application for the second hearing, set out what they saw as the problems this had caused them “….orders are sought to remove any ambiguity; orders are enforceable.”
Had the judge made the orders sought would the case have ended in April?
In these senses the case was miles away from an old fashioned Wardship cases. I make these comment not in any way to advocate a return to the old days. I make them to highlight the dilemmas. The speed of social media and the effect it can have on the speed and progress of a case is a dilemma that must be addressed. The child’s best interests, by law paramount, deferred to other principles.
The case is an article on Wikipedia at https://en.wikipedia.org/wiki/Charlie_Gard_case
LikeLike