‘It should shame us all’: Why Charlie Gard’s parents were not entitled to legal aid
Government’s destruction of public funding budget takes spotlight
Lawyers can do little to contain their shock and anger over news Charlie Gard’s parents weren’t entitled to legal aid.
Chris Gard and Connie Yates, the parents of terminally ill Charlie, yesterday discontinued their legal action against Great Ormond Street Hospital (GOSH). Gard and Yates had been hoping to take their baby son to America for experimental treatment for mitochondrial DNA depletion syndrome. However, in High Court (Family Division) judge Mr Justice Francis’ words:
The parents have had to face the reality, almost impossible to contemplate; that Charlie is beyond any help even from experimental treatment and that it is in his best interests for him to be allowed to die. Given the consensus that now exists between parents [and] the treating doctors… it is my very sad duty to confirm the declarations that I made in April this year, and I now formally do so.
The parents’ arguments have had numerous spells in the High Court and have too been considered by the Court of Appeal, the Supreme Court and the European Court of Human Rights — a case this high profile and complex demands skilled lawyers.
While their skill hasn’t been doubted, their remuneration has. It has come to light that Yates and Gard depended on the help of pro bono lawyers, because they were not entitled to legal aid. A number of lawyers represented the family during the case, including solicitors from Harris da Silva and Bindmans, and barristers from Brick Court Chambers, Six Pump Court and Serjeants’ Inn.
Legal aid, or rather the lack of, is never far from lawyer lips. Just weeks ago, the profession had their head in their hands because Conservative cuts had reportedly denied Grenfell Tower residents advice on safety concerns. But the rules denying postman Gard and carer Yates public funding to fight for their son’s life have really, really riled lawyers. Family law solicitor Ellen Lucas said:
Charlie Gard's parents could not get legal aid. Think about that. It should shame us all.
— Ellen Lucas (@ellenrlucas) July 24, 2017
While employment silk Daphne Romney fumed:
This is a disgrace. No legal aid for Charlie Gard's poor parents. https://t.co/DzaREZeHPz
— Daphne Romney QC (@DaphneRomneyQC) July 24, 2017
Former Lord Chancellor Charlie Falconer was equally appalled:
Charlie Gard's parents not entitled to legal aid. Appalling.
— Charlie Falconer (@LordCFalconer) July 11, 2017
The availability of legal aid was stripped to its bare bones five years ago in key areas such as private family law and housing. However, the Legal Aid Agency does and will provide funding for public family law cases, i.e. care cases. This is because a public body, the local authority, rather than a private individual brings the case.
Given that GOSH is an NHS hospital, you may well assume the Charlie Gard case falls under the public law umbrella rather than the private law umbrella. Social worker Winston Morson certainly did. He told us:
I was really shocked to find out the parents weren’t entitled to legal aid. GOSH is a state body that is making an application to court, so the fact parents don’t have recourse is appalling.
Francis also discussed this anomaly in his judgment, which continued:
It is not for judges to make political points and I do not now seek to do so. However, 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 tothe court for a declaration that a life-support machine should be switched off in respect of a child.
It’s unusual for the judiciary to comment on politics in this way — will it make the government take note? Cloisters barrister Anna Beale hopes so:
1/3 Francis J's criticisms of the lack of legal aid funding for Charlie Gard's parents should be required reading for the government.
— Anna Beale (@AnnaCBeale) July 24, 2017
Child protection specialist Morson is less optimistic. “Since changes were made to access of legal aid, there’s been an awful lot of comment and protest from lawyers, social workers and families, and this hasn’t led to any change,” he recalls. Fingers crossed Francis’ comments — made during perhaps the most high profile case of the year so far — will be the catalyst lawyers have long been wishing for.
Read the judgment in full below:
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