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High Court affirms declaration that Charlie Gard’s life support may be withdrawn

Parents withdraw objection to GOSH’s application

In Great Ormond Street Hospital v Yates and Gard [2017] EWHC 1909 (Fam) Mr Justice Francis has affirmed declarations made by him in April in respect of Charlie Gard's medical treatment following the withdrawal of objections to those directions by Charlie's parents, Constance Yates and Christopher Gard. Francis J stated:

"It is impossible for any of us to comprehend or even begin to imagine the agony to which Charlie's parents have been subjected in recent weeks and months as they have had to come to terms with the decision that they have now made."

The declarations were that:

"i. Charlie Gard, by reason of his minority, lacks capacity to make decisions regarding his medical treatment;

ii. it is not in Charlie's best interests for artificial ventilation to continue to be provided to and it is therefore lawful and in his best interests to be withdrawn;

iii. it is lawful and in Charlie's best interests for his treating clinicians to provide him with palliative care only;

iv. It is lawful and in Charlie's best interests not to undergo nucleoside therapy.

Provided always that the measures and treatments adopted of the most compatible with maintaining Charlie's dignity."

Since those declarations were made, the matter has been considered by the Court of Appeal, which upheld the declarations, the Supreme Court which refused permission to appeal and the European Court of Human Rights which declared the parents' application inadmissible.

The latest hearing was prompted by claims that there was new evidence about the viability of alternative treatment in the United States that would have a positive effect and would benefit Charlie. A multi-disciplinary meeting of experts agreed that fresh MRI scans should be conducted and the results of  those scans led to a consensus that Charlie is "beyond any help even from experimental treatment".

Mr Justice Francis made comments of broader significance in respect of such cases. In respect of the non-availability to the parents of legal aid, he said:

"[I]t does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child. Mercifully, Mr Gard and Ms Yates have secured the services of highly qualified and experienced legal team whose lawyers have been willing to give their services pro bono. I am aware that there are many parents around the country in similar positions where their cases have been less public and where they have had to struggle to represent themselves. I cannot imagine that anyone ever intended parents to be in this position."

As to the best method by which such disputes should be conducted in the future, Mr Justice Francis raised the possibility of mediation:

"Almost all family proceedings are now subject to compulsory court led dispute resolution hearings. This applies in disputed money cases, private law children cases and in all cases involving the welfare of children who might be the subject of care proceedings. I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other's positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee."

For the latest judgment, click here.

25/7/17