Thursday, 27 July 2017

Baby Charlie Gard

Baby Charlie Gard was born on 4th August 2016 and was found to have a complex inherited condition which may be abbreviated to MDDS.  This poignant case has attracted a vast amount of comment in the media and elsewhere but, to obtain a thorough understanding of the situation, there is NO substitute for reading the judgments of the courts and the position statements of the parties.  The statements may be read via Serjeant's Inn 31st July 2017.

MDDS is described by Mr Justice Francis in his judgment of 11th April 2017 at paragraph 52 - Family Division, Mr Justice Francis judgment 11 April 2017 (transcription published May).  Baby Charlie was receiving medical care at Great Ormond Street Hospital (GOSH). On 24th February 2017, GOSH applied to the High Court for certain orders to be made and this application was opposed by the parents - Constance Yates and Chris Gard.  On 11th April 2017, Francis J granted the hospital's application.  The parents appealed to the Court of Appeal (Civil Division).

The Court of Appeal gave judgment on 23rd May and upheld the judgment of Francis J - Court of Appeal (Civil) judgment 23 May 2017.  This judgment is particular notable for the rejection of a legal argument which was not only new to these proceedings, in the sense that it was not run before the judge, but it was a wholly new point of law (save insofar as it can be based upon the earlier High Court decision of Re King [2014] EWHC 2964 (Fam)).  This argument sought to supplant, for this type of case, a test based on "significant harm" rather than "best interests" of the child.

The parents applied to the Supreme Court for a further appeal which was refused on 8th June and there was a further Supreme Court judgment on 19th June dealing essentially with the need to "stay" the orders of Francis J to allow the European Court of Human Rights time to consider the matter.  See the Supreme Court Website for details of proceedings in the Supreme Court.

On 3rd July 2017 the European Court of Human Rights declared the application of the parents to be inadmissible for reasons set out at European Court of Human Rights 3 July 2017

There were further proceedings in the High Court before Francis J who, on 24th July 2017, confirmed the declarations he had made in April - read his judgment here.

On 26th July 2017, Francis J made this order dealing with various further matters that had been raised and making what are likely to be the court's final declarations in the matter.  It is an important order with a confidential annex.

The Baby Charlie situation demonstrates the compassion, care and attention to detail with which these cases are handled as the court seeks to discharge its duty to resolve disputes in connection with children.  The legal test, which has to be applied by judges, is to determine what is in the best interests of the child.  This is what the judge is sworn to do as Francis J reminds us at paragraph 11 here.   Everyone either involved in or observing these proceedings will feel deep sympathy for this little boy and his loving parents who, without legal aid but with the help of lawyers acting pro bono, fought so hard to do all they could for him.  There can be no greater testament to parenthood.

With great sadness, Charlie's death was reported in the early evening of 28th July 2017 - BBC News 

Cases etc:

The following links are to some cases and other material where the "best interests" test has been considered by the courts:

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

Airedale NHS Trust v Bland [1993] AC 789; [1993] UKHL 17

Media etc:

The Transparency Project - Barbara Rich 1st August 2017 - Update on the Charlie Gard case: The last stage of the litigation: facts and sources

The Transparency Project - Barbara Rich 6th August 2017 - Public and private, the limits of transparency in Charlie Gard's case - an update

Public and private, the limits of transparency in Charlie Gard’s case – an update

Young Legal Aid Lawyers - Charlie Gard - (regarding the legal aid position)

The Independent 27th July 2017 - Would Charlie Gard have survived if he'd been treated sooner? Here's the sad truth

Joshua Rozenberg attended hearings in the High Court and reported on them via Twitter:

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