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‘It should shame us all’: Why Charlie Gard’s parents were not entitled to legal aid

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Government’s destruction of public funding budget takes spotlight

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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:

While employment silk Daphne Romney fumed:

Former Lord Chancellor Charlie Falconer was equally appalled:

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:

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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21 Comments

Anonymous

“Just weeks ago, the profession had their head in their hands because Conservative cuts had reportedly denied Grenfell Tower residents advice on safety concerns.”

I first read that as if there was an “n” placed in the middle of the word “cuts”. The sentence would read well, and possibly even better, if it was actually drafted like that.

(34)(7)

Anonymous

I agree. The people who vote for them can be described in similar terms too.

(8)(11)

TRH Theresa May MP

U wot m8?

(12)(0)

Anonymous

Who cares.

(5)(17)

Anonymous

Well, the parents of Charlie Gard, for starters, who were limited in their ability to present their arguments before the High Court by the fact that they could not afford to do so.

(9)(10)

Anonymous

The millions of people who cannot afford legal representation or advice and who now have limited or no access to it following legal aid cuts. It is embarrassing and unacceptable.

(15)(2)

NC Trainee

Governments of left and right persuasions have for the last couple of decades have intended to, and in fact have, cut legal aid. It seems not a left/right issue – recent cuts may have been most profound, but they are part of s longer trend.

The only way to address this is through cross-party / cross-ideology public pressure. This will never happen, though, as the public runs on spite and jealously and would never see all lawyers as ‘fatcats’. Part of a wider public ignorance regarding all things legal.

(4)(1)

Trumpenkrieg

What shames us all is how this case is a massive example of Big Daddy State getting involved in every single aspect of private citizens’ lives.

Go back 200 years and tell people that in future English courts, parents would have to go up against the “Childrens’ Guardian” (a vomit-inducing sobriquet if ever there was one), and they would look at you like you were an alien.

(4)(10)

Anonymous

200 years ago you’d be lucky not to die of cholera surrounded by excrement. Hardly the model era to base our discourse around, is it?

(16)(2)

Anonymous

Bit like Yemen today you twat, Oh and that’s our fault as well, good old progress.

(0)(0)

Anonymous

What are you on about? Do you even understand the point being made? Bizarre. Angry loser syndrome I suppose.

(I’m not the Anon of 7.46pm.)

(0)(0)

Anonymous

I don’t disagree with the basic, general issue underlying the sentiments expressed. This country should supply legal aid much more readily.

But I am slightly reluctant to treat this case as an exemplar. The idea of the state funding continued legal opposition to expert medical advice given on behalf of a terminally ill child leaves me uneasy.

(24)(2)

Anonymous

this x 100

(4)(0)

Anonymous

Unfortunately in this case I feel like GOSH shouldn’t have taken the parents to Court, I don’t see what is wrong with experimental treatment, surely experimental treatment with a 1% chance of success is preferable to condemning someone to a 100% guaranteed death sentence?

I would be intrigued to see how much this whole saga has cost the NHS through legal fees? Someone want to make a FOI request?

(6)(1)

Anonymous

I disagree. I think we as lay people need to trust doctors to make the right decisions about our best interests in cases like these. We (as professionals) are trusted implicitly by our clients. Doctors do a far more onerous and important job than we do, and this is an example of a client (for want of a better word) not liking a simple fact: it was in Charlie’s bests interest to be allowed to die some months ago now. Every expert who has ever visited him has agreed without caveat.

Cuts to legal aid are biting people, but this case is not the best example of why it shouldn’t be so. Providing public funding so that well-meaning and doting parents who are nevertheless fundamentally wrong can leave the state an even bigger legal bill is not an ethical use of taxpayer money.

(11)(3)

MP

Before making such “idiotic” comments, may I suggest that you read or listen to Dr. Atul Gawande comments made on Radio 4 a couple of years ago and read books like the one written by Dr. Desmond Allen. In other words – doctors are incompetent and ignorant (and many doctors are saying so). Simply wake up to the truth. It is all about making money/profits and it is all controlled by the Big Pharma (starting from Uni). What right does a “Charity Hospital” has to take this case to Court and waste millions of money from donations????

(0)(1)

Anonymous

You’re probably anti-vaccination and pro-flat earth theory.

(0)(0)

Anonymous

MP – you have clearly not read the papers in the case. Please do so, and then you will realise how the hospital was forced to ask the court to rule having been put in that position by the parents. Parents who did not wish to believe numerous doctors’ findings nor the evidence before their eyes, and chose instead to believe a doctor several thousand miles away who had never even examined poor Charlie.

(0)(1)

Anonymous

I like Mr Gard work for a living , In to am not entitled or expect Legal aid, what should make them any different, Haven’t they raised 1 Million + for the save Charlie charity ? , Why didn’t they use any monies raised for the purpose of Charlies case?
I suppose they are going to refund all monies raised ?
I am a parent of 5, and am disgusted with charlies parents yes I feel for them, but feel they are putting them selves first over charlies life or lack of it. What sort of life would he have if he lived, All but brain dead, he cannot move his arms or legs and also has congenital deafness and a severe epilepsy disorder. This is NO life for anyone.
The only real outcome from this case is the bad press GOSH have got, everyone seems to have forgotten what excellent work and long hours the nurses and doctors do every day with other terminally ill children…
Charlies parents SHAME ON YOU …

(5)(4)

MP

Legal Aid? Just 2 very recent cases. Is this right?
A paedophile illegal immigrant who was allowed to stay in Britain claiming deportation would breach his human rights has finally deported from the UK after a legal battle that has cost taxpayers up to £100,000.
Rochdale grooming gang got £1MILLION in legal aid to fight chilling child sex abuse crimes – and now want more to stop them being deported
Taxpayers paid £1,009,645 to help the gang members, who preyed on girls as young as 13, unsuccessfully defend the charges

(0)(0)

Lamia

The leaders of the Rochdale child abuse ring have received over £1m in legal aid. That is to say, lawyers have received £1m for representing these scum. They are now receiving more legal aid money in a desperate bid to stop them being deported.

The problem with Legal Aid is not the budget, it is the way it is allocated. There is a perverse sympathy in the legal establishment for vile criminals, especially those who are foreign, and a callous indifference to the victims of real misfortune. This is allied to monumental greed on the part of lawyers. It’s why lawyers as a profession are so despised. Perhaps some of you should do something to rectify that.

(4)(0)

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