By Gabriel Princewill-
The Court of Appeal has ruled that the rights of the Muslim parents of a seriously ill baby on a life support machine were breached by the courts in not affording them an adjournment to allow them to find a lawyer.
In a comprehensive ruling clearly setting out the correct manner in interpreting Human Right Laws in the context of procedural fairness, Lord Justice Baker(pictured) went to great lengths to explain why it was unlawful to prevent the aggrieved parents ample time to adjourn a case in aid if seeking legal representation.
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The parents, whose entire family were granted anonymity by the court, were robbed of the chance to find a lawyer to present their argument that their medically deformed baby should be granted more time on a life support machine, Justice Baker, who is also Editor-in-Chief of the Court of Protection Law Reports and General Editor of the Court of Protection Practice said in his ruling.
This, despite the now evidence that the baby is” clearly dying and will die at some indeterminate point”.
In an insightful ruling detailing multiple legal grounds for his thinking, Lord Justice Baker said there were ‘plainly a number of strong arguments’ for granting an adjournment of last month’s hearing, based on the principles of fairness.
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”The only argument against an adjournment which should have carried any significant weight was what the judge described as the child’s “parlous condition”, Justice Baker said. ”Plainly, there may be cases where, balancing the arguments, a judge may conclude that the child’s condition is so serious that no adjournment however short is possible”. This, however, was not one of such cases, he indicated.
The erudite judge pointed out that “by failing to adjourn the proceedings to allow the proposed appellants to be legally represented, the previous court breached the proposed appellants’ fair trial rights protected by Article 6 ECHR.
Justice, he said, is ”intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.”
”These principles apply to all litigation, including in the protective jurisdictions in the family courts and the Court of Protection. The fact that the welfare of a child is the paramount consideration in proceedings under the Children Act 1989 and the inherent jurisdiction relating to children, and that any act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests does not obviate the requirement for a procedure which pays due respect to persons whose rights are significantly affected by such decisions, he said.
The specific procedural requirements will, however, be tailored to take into account the nature of the protective jurisdiction and the extent to which such persons are permitted to participate will depend on the specific circumstances of the case.
Principles Of Fairness
Applying the principles of fairness there were plainly a number of strong arguments in favour of granting the parents an adjournment of the hearing on 25 August, he said.
Justice Baker asserted that ”there is clearly an argument that the State should provide non-means tested public funding for all parents in this situation, as it does for the parents faced with an application to place a child in the care of a local authority under Part IV of the Children Act 1989”.
They included the complexity of the procedure, the necessity of cross-examining expert witnesses, the intense emotional involvement of the parents themselves, the speed with which such proceedings have to be conducted and concluded, the fact that the parents are not native English speakers, and the serious consequences of the proceedings.
He added that ”in a situation where legal representatives are required under Article 6, and the State is unwilling to grant legal aid, it falls to the court to give effect to the State’s obligation, in this case by granting a short adjournment to enable legal representation to be obtained”
He said Article 6 obliges the provision of legal representation in certain serious cases, where such assistance is indispensable for effective access to the court.
Justice Baker insisted that there is clearly an argument that the State should provide non-means tested public funding for all parents in this situation, as it does for the parents faced with an application to place a child in the care of a local authority under Part IV of the Children Act 1989.
Litigants In Person
The ruling is significant and can have serious implications for other similar cases unless successfully, which is hardly conceivable. The super bright judge’s points were ingeniously enunciated.
The parents involved in the case were forced to act as litigants in person after their former lawyers, Irwin Mitchell failed to successfully obtain legal aid for the case. The NHS trust where their child was being treated applied to the Family Division for permission to withdraw treatment.
The child, who was born in April 2022, is being kept alive on a ventilator after sustaining two devastating injuries to his brain. Nine weeks after his birth, he was admitted to hospital having suffered intracranial injuries. His brain was found to have been denied oxygen for 30 minutes- a situation doctors believed was caused by accidental inflicted injuries.
His parents were subsequently arrested but released on bail without charge. The kid was then transferred to a specialist children’s hospital with a paediatric intensive care unit where he was intubated and ventilated.
Medics believe it is not in his best interest to be kept alive by artificial means any longer and that his chances of survival are remote. The family who are devout Muslims, insist that the decision of whether the child lives, or dies is that of Allah. The subjected and uncorroborated views of the religious parents were unconnected with the legal grounds demonstrated by the judge.
Medics estimated that the brain of the child had been deprived of oxygen for approximately 30 minutes. He was subsequently transferred to a specialist children’s hospital with a paediatric intensive care unit where he was intubated and ventilated.
Medical examinations led the doctors to suspect that his injuries may have been inflicted non-accidentally. As a result, the parents were arrested by the police, interviewed and then released on bail.
The first followed a series of haemorrhages, and the second a hypoxic ischaemic encephalopathy following a cardiac arrest. The medical opinion of the treating clinicians is that there is no hope of any recovery and that he is dying
A day before the treatment withdrawal hearing, the parents applied for a three-week adjournment to allow them to find representation, saying they needed to organise crowdfunding and that they had identified a lawyer who could act for them if they had the funds.
Mr Justice Hayden had erroneously rejected the plea for more time, arguing that proceedings had already been before the court for over a month and that the treating clinicians and court-appointed expert were in court to give evidence.
Withdrawal of ventilatory support was scheduled to take place the day after his judgment, but the hospital delayed this in the anticipation of an appeal.
Human Rights Breach
The parents had lost their legal representation a few days before the hearing through no fault of their own and could not find another, this was the gravest and most important matter any parent could face, and the task facing them as litigants in person was ‘daunting’.
However, Judge Baker stressed the importance of interpreting the law primarily from the perspective of domestic law, before trying to achieve compliance with internal law where necessary and legitimate.
”The Supreme Court has stressed in recent years that the Human Rights Act 1998 (“HRA”) should not normally be treated as the starting point in any case in which human rights issues arise, he explained.
Although the importance of the Act is “unquestionable”, it does not supersede the protection of human rights under the common law or statute or create a discrete body of law based on the judgments of the European Court of Human Rights.
The Law Of Evidence And procedure
Citing a slew of relevant case law, he highlighted one in which Lord Reed said: “Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.”
As Lord Reed pointed out at paragraph 55, the guarantee of a fair trial under Article 6 is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The correct approach was summarised by Lord Reed at paragraph 62 as follows:
“… The ordinary approach to the relationship between domestic law and the Convention [has been] described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles rather than the judgments of the international court.”
‘Even a parent who had been involved in the proceedings and was familiar with the evidence and issues would find it very challenging to conduct a hearing when they had not been expecting to do so,’ he added. ‘And they would be required to do so at a time when their child was lying desperately ill in hospital.’
While there may be cases where a child’s condition was so serious that no adjournment was possible, these were rare and the parents still deserved to put their case. The trust’s application was relisted before another judge at the earliest opportunity, with the hope that legal representation can be obtained for this to happen in the next two weeks”.
” My unwavering focus must be fixed on that which I assess to be in A’s best interests. I have taken time to survey the broad canvas of the evidence in this case, as I am obliged to do, and not merely the medical evidence. The spectrum here, given A’s short life, is narrower and more circumscribed than in some cases. Nonetheless, the culture and faith into which A has been born is an important factor, however difficult it might be to calibrate the weight to be afforded to it.
Conflict Between Medicine And Faith
Justice Baker also rebutted the perspective of the erring judge in the previous case in which he highlighted a conflict between medicine and faith.
”And even if the judge was right to say that the central dispute was “a conflict between medicine and faith”, that did not undermine the strength of their argument for an adjournment.
”The fact that on paper the medical evidence all seems to point one way does not mean that the parents should not have an opportunity to challenge it. Earlier in this case, the treating clinicians had declared A dead on the basis of several brain stem tests, only to rescind the declaration when he started breathing again. The Trust then withdrew its application to the court for a declaration of death. Although the parents may have characterised this as a miracle, it can also be seen as one of those examples identified by Megarry J in John v Rees of “open and shut cases which, somehow, were not”
Ultimately, the severity of A’s brain injury, the complete absence of any ability to benefit from treatment, the impossibility of excluding potential for residual pain and the burden of the treatment itself illuminate mechanical ventilation as contrary to A’s best interests.
” There is unique value in human life, frequently referred to as the ‘sanctity of life’. That does not dissipate where awareness diminishes, or the capacity of the brain becomes so corroded that all autonomy is lost. It is perhaps in these circumstances that it requires the most vigilant protection.
The judge said the evidence is clear that the child is now dying and will die, at some indeterminate point, whether ventilated or not. To continue ventilation will serve here only to protract death. In simple terms, it would confer harm without conveying benefit. That cannot be reconciled with the ethical obligations of the treating clinical team nor can it be in A’s best interests. For this reason, the ventilation should be withdrawn, and palliative care provided.
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