Here are four reflections on the Charlie Gard case.
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, 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.
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. 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.”
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.
 See www.gosh.nhs.uk/file/23731/download?token=TWJkSxZu for the second position statement.
 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.