Judge who heard Charlie Gard case urges greater use of mediation

Mediation should be tried in all cases such as the recent dispute between Great Ormond Street Hospital and the parents of Charlie Gard, the High Court judge who heard the case has said.

The parents, Chris Gard and Connie Yates, had challenged the hospital's application to the court for a declaration that the boy's condition meant he should receive palliative care only. They argued that Charlie should instead be taken to the United States for experimental treatment.

The judge, Mr Justice Francis, supported the hospital's position, however. His decision was found to be lawful by the Court of Appeal, the Supreme Court and the European Court of Human Rights.

Charlie’s parents have now agreed that Charlie be moved to palliative care, the possibility of the treatment in America having proven unavailable.

In Gard (A Child), Re [2017] EWHC 1909, the judge's latest ruling published yesterday, Mr Justice Francis said almost all family proceedings were subject to compulsory court led dispute resolution hearings. 

“I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be,” he said.

“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.”

The judge also criticised legal aid reforms that he said could have left parents Constance Yates and Christopher Gard without legal representation had they not secured pro bono support.

He said: “It does seem to me that when Parliament...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.”

Many parents whose cases attracted less publicity would have had to struggle to represent themselves. “I cannot imagine that anyone ever intended parents to be in this position,” the judge added.

The case had attracted interventions even from the Vatican and President Trump, together with demonstrations and abusive threats to hospital staff.

Mr Justice Francis said: “A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions.

“Many opinions have been expressed based on feelings rather than facts. My task today is to deal with the applications that are before me and to make the declarations which are now unopposed.”

He condemned “the absurd notion” that Charlie had been a prisoner of the National Health Service or that it could decide his fate.

“In this country children have rights independent of their parents...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”.

The judge also deplored the threats made against staff and noted that Mr Gard and Ms Yates had played no part in fomenting these.

According to a report today on the BBC, the parents returned to the High Court today to seek permission to take their son home to die, accusing the hospital of putting obstacles in the way of this happening.