ECtHR to consider whether there has been a breach of article 8 rights to privacy and family life
9 June 2017
Ten-month-old Charlie Gard should be kept alive until the end of 13 June to allow the European Court of Human Rights to consider a possible appeal in the case brought by his parents against a High Court ruling allowing doctors to withdraw life-support.
The Strasbourg court made the request to the UK after the Supreme Court refused an appeal by Charlie’s parents on 8 June to overturn the ruling that would allow Great Ormond Street Hospital to turn off life-support and move Charlie into palliative care.
European judges made the request ‘in the interests of the parties and the proper conduct of the proceedings before it’. It has asked the UK to provide Charlie ‘with such treatment and nursing care as may be appropriate to ensure that he suffers the least distress and retains the greatest dignity consistent, insofar as possible, with maintaining life until midnight on Tuesday 13 June 2017’.
Chris Gard and Connie Yates filed an application for urgent interim measures under Rule 39 of the European court’s procedure rules on 6 June 2017 in anticipation of the Supreme Court’s decision to reject their appeal.
Urgent interim measures are granted in exceptional circumstances when the applicants can convince the court that they would otherwise face an imminent risk of irreversible harm. The application will be considered next week by a panel of seven judges. The decision to grant interim measures is without prejudice of any subsequent decisions on the admissibility or merits of the case in question.
Yates and Gard have been given a 24-hour reprieve yesterday (8 June) 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 ECtHR 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 Supreme 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 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.’
This story was first published on Solicitors Journal on 9 June 2017 and is reproduced by kind permission