Charlie Gard: Supreme Court turns down appeal, now all depends on Strasbourg

9 June 2017 by David Hart KC

Yates and Anor v Great Ormond Street for Children 

Earlier this week, Rosalind English posted on the Court of Appeal’s decision here. The case was heard by the Supreme Court during the afternoon of 8 June, but the SC agreed with the courts below that the Hospital was entitled to withdraw artificial ventilation. 

Lady Hale gave a short explanation of her reasons: see here and my summary below.

Charlie is ten months old. He has a rare inherited disease, which means that his condition has deteriorated seriously since he was born. He cannot move his arms or legs or breathe unaided. His brain is severely affected. He is kept alive by a mechanical ventilator.

All agree that his present quality of life is not worth living. But the parents have been offered the prospect of a new treatment in the USA, nucleoside therapy, which, it is thought, might result in some amelioration of this disease.  The judge concluded that ‘the prospect of the nucleoside treatment having any benefit is as close to zero as makes no difference. In other words, as I have said, it is futile’. The judge therefore granted the Hospital’s request to withdraw Charlie from the ventilator.

Charlie’s parents asked the hospital to continue to keep Charlie alive by artificial means until they can take him to the United States for the treatment which has been offered there and for which they have raised the funds to pay. How, they argue, can the hospital try to prevent them from transferring the care of their son to another team?

Lady Hale pointed out

We are bound to accept the factual findings of the trial judge, who has heard the evidence, including the evidence of the doctor in the USA who is prepared to offer treatment, and the judge found that further treatment would be futile. The legal test which he applied was whether further treatment would be in Charlie’s best interests and in his order he expressly found that it would not be.

The parents said that this is not the right legal test. The hospital can only interfere in the decision taken by the parents

if the child is otherwise likely to suffer significant harm.

Decisions taken by parents who agree with one another are non-justiciable. Parents and parents alone are the judges of their child’s best interests. Any other approach would be an unjustifiable interference with their status as parents and their rights under Article 8 ECHR.

Lady Hale gave several answers to this argument.

Firstly, applications such as this are provided for by statute, namely the Children Act of 1989, as well as under the inherent jurisdiction of the High Court. Both are governed by the same principles. Section 1, sub-section 1 of the Children Act 1989 provides that the

welfare of the child shall be the paramount consideration in any question concerning the upbringing of the child in any proceedings.

See also Article 3.1 of the United Nations Convention on the Rights of the Child, which says that in any official action concerning the child, the child’s best interests shall be a primary consideration.

Furthermore, where there is a significant dispute about a child’s best interests the child himself must have an independent voice in that dispute. It cannot be left to the parents alone. The guardian agrees with the hospital and with the judge’s decision.

So, parents are not entitled to insist upon treatment by anyone which is not in their child’s best interests. It is in any event likely that Charlie will suffer significant harm if his present suffering is prolonged without any realistic prospect of improvement.

Finally, the Strasbourg Court has said that in any judicial decision where the rights under Article 8 of the parents and the child are at stake, the child’s rights must be the paramount consideration. If there is any conflict between them the child’s interests must prevail.

In short, therefore, it is quite clear that the hospital was entitled to bring these proceedings, and the judge was required to determine the outcome of these proceedings. In doing so, he applied the right test and his factual findings cannot be challenged on appeal.

So permission to appeal was refused.

Conclusion 

Even this may not be the last word.

The Supreme Court ordered that a further stay of the High Court’s order be granted until 5pm today, Friday 9 June. This gives the parents the opportunity to ask the Strasbourg Court to give an indication to the United Kingdom of any interim measures which it considers should be adopted in the interests of the parties.