Pre-emptive application to ECHR questions possible breach of article 8 rights
8 June 2017
The parents of Charlie Gard have been given a 24-hour reprieve after the Supreme Court stayed its decision to refuse an appeal against an order to withdraw treatment from their son.
The stay will allow the European Court of Human Right to consider whether there is an arguable case that there has been a breach of article 8 rights to privacy and family life.
Richard Gordon QC, counsel for the family, applied for the stay after Lady Hale gave the court’s decision. The legal team had made a pre-emptive application to the Strasbourg court and had been assured they would be given an answer within 24 hours as to whether the court would consider the case, he said. The Supreme Court decision has therefore been stayed until 5pm on Friday 9 June.
The Brick Court silk had argued that to allow doctors to decide without taking account of the parents’ wishes amounted to ‘state intrusion on a massive scale’ and that focusing solely on a child’s best interests was the wrong yardstick.
Developing arguments he had put to the Court of Appeal that the case raised a novel point about the ‘significant harm’ threshold, he said the parents should be allowed to make the decision they believed was in Charlie’s best interests unless there was a risk of ‘significant harm’. Unless there was a dispute about where that threshold was, the courts should not interfere.
Explaining the Supreme Court’s refusal to allow the appeal, Lady Hale said it was ‘quite clear that the hospital was entitled to bring these proceedings. The judge applied the right test and his findings cannot be challenged.’
Charlie Gard was born on 4 August and suffers from a rare and incurable genetic condition. The ten-month-old boy has been on life-support at Great Ormond Street Hospital for most of his short life.
Earlier this year, doctors applied for permission to trial nucleoside therapy, a treatment that has not been tried on human beings or animals.
In the meantime, Charlie’s condition deteriorated to such an extent that the doctors concluded any form of treatment would be futile. They applied to the court for authorisation to withdraw treatment after the parents objected.
Connie Yates and Christopher Gard said a US doctor had offered to provide nucleoside therapy; they had raised £1.3m to fly Charlie to the US and should be allowed to do so.
The US doctor hasn’t seen Charlie and was due to give evidence to the court. After a conversation with Great Ormond Street, he later agreed that any attempt at therapy would be futile and that Charlie would be unlikely to improve.
On 11 April, Mr Justice Francis accepted the hospital’s view that it would be in the child’s best interest for artificial ventilation to be stopped and to provide palliative care only, so he could be allowed to die peacefully and with dignity.
Francis J’s ruling was upheld by the Court of Appeal and Charlie’s parents made an emergency application to the Supreme Court.
‘Any court will have the utmost sympathy for parent exploring every possible way of preserving the life of their baby son,’ Lady Hale said. ‘As parents we would be all likely to do the same.
‘However, as judges, we are concerned only with the legal position. We’re bound to accept factual findings of the trial judge who has heard the evidence, including from the US doctor and the doctors here who found that any treatment would be futile.’
In response to the ‘significant harm’ point, Lady Hale said applications such as this one were prescribed by statute and by the court’s inherent jurisdiction.
‘Both are governed by the same principle. The welfare of the child shall be the paramount consideration in any question concerning the welfare of a child in any proceedings,’ she said.
Lady Hale also cited the UN Convention on the Rights of the Child, which said that in any official action concerning a child, the child’s best interests were a primary consideration.
‘Furthermore,’ she said, ‘where there is a significant dispute, the child himself must have an independent voice; it cannot be left to the parents alone. It’s happened here; Charlie has been represented by a guardian […] and the guardian agrees with the hospital and the judges’ decision. The parents are not entitled to insist on treatment by anyone where this is not in the child’s best interest.’
The former family division judge also referred to European Court of Human Rights’ precedents, which, she said, made clear that any judicial decision where there was a conflict between the parents’ rights under article 8 and the child’s rights under the same provision, then the child’s interests must prevail.
This story was first published on Solicitors Journal on 8 June 2017 and is reproduced by kind permission