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Charlie Gard and legal aid in family proceedings

Date:4 AUG 2017
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Solicitor Advocate
Much will be written about the very sad Charlie Gard case. In his short judgment which concluded the case Re Gard (A Child) [2017] EWHC 1909 (Fam) (judgment: 24 July 2017) Francis J made four general points, two of which have a bearing on legal aid in family proceedings.
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First he made the point that the parents’ lawyers had worked free (pro bono); whilst had Charlie’s case been in relation to care proceedings, his parents would have had legal aid regardless of their means or of the merits of their part in the High Court proceedings. Francis J continued:

[17]… It 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…. 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.

This is not the place to debate whether Charlie’s parents should have had legal aid as an exceptional case determination (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3); and see 'Gudanaviciene: legal aid guidance not compatible with a right to a fair trial'). However, Francis J’s words must surely be considered seriously by a Lord Chancellor with any thought for fairness to families in cases such as this which – as the judge pointed out – are precisely analogous with care proceedings. Alongside the re-introduced provisions for cross-examination for domestic abuse complainants perhaps the new Lord Chancellor could review this gap in legal aid provision.

Legal aid and children’s rights

The second point made by Francis J also has resonances which raise much wider issues for entitlement of children to legal aid: that of children’s rights. Children have rights independent of their parents and of the state:

[18] … I think it my duty to comment briefly on the  absurd notion which has appeared in recent days that Charlie has been a  prisoner of the National Health Service or that the National Health Service has  the power to decide Charlie's fate. This is the antithesis of the truth. In  this country children have rights independent of their parents. Almost all of  the time parents make decisions about what is in the best interests of their  children and so it should be. Just occasionally, however, there will be  circumstances such as here where a hospital and parents are unable to decide what  is in the best interests of a child who is a patient at that hospital.

In consequence of these rights – and the rights deepen and broaden as a child reaches maturity – a hospital must seek the court’s approval for a step such as that required for Charlie Gard (to enable him to ‘die with dignity’). The judge acts entirely independently of the state or any of its agencies:

[18] … It is precisely because the hospital does not have power in respect of that child that this hospital makes an application to the court, to an independent judge, for a determination of what is in that child's best interests. In circumstances where there is a dispute between parents and the hospital, it was essential that Charlie was himself independently represented and a guardian was therefore appointed to represent Charlie so that there was someone who could independently report to the court as to what was in his best interests. Our judges are fiercely independent of the state and make decisions, having heard evidence and having considered the law. Our law in relation to children in circumstances such as this is governed by Children Act 1989 s 1 which contains a proposition which I suggest would be hard to criticise [namely]: ‘when a court determines any question with respect to the upbringing of a child the child's welfare shall be the court’s paramount consideration’.

This leads away from Charlie’s case, but reflects directly on legal aid. A child’s rights as he or she reaches age and understanding (much older than Charlie) are defined by the common law (see pre-eminently, Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 FLR 224) and by international laws.

Child’s views according to ‘age and maturity’

In any proceedings in relation to a child United Nations Convention on the Rights of the Child 1989 Art 12 states:

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

As to a child’s views, Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24.1 says much the same thing:

Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

The argument on legal aid for children – and Charlie had legal aid – is for another day; but there are two facts which require urgent legislative review:

  • Rights are only rights if their beneficiary is aware of them. I doubt that many children who are the subject of court proceedings are aware of their rights to express a view (especially in private law proceedings); and
  • Legislative provision for representation of children and of their rights is disorganised and ‘complex’ (see per Black LJ in Re W (A Child) (Care  Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 2 FLR 199: ‘the complexity of the scheme under Children Act 1989, s 41 and Family Procedure Rules 2010 Pt 16) in a way which fails to make any real attempt set up a clear system which lawyers – and even more so, Gillick-competent  children – can properly understand (a subject to be explored another day).

The rights of parents and of children to legal aid, and to a comprehensible scheme for its grant in cases of parents’ and children’s rights, are emphasised by Francis J’s comments. It is to be hoped that Charlie’s case can lead the new Lord Chancellor in a direction which addresses parents need and children’s rights.