NO PUBLIC FUNDING FOR PARENTS WHEN THE LIFE OF THEIR CHILD IS BEING CONSIDERED BY THE COURT: A DECISION THAT HIGHLIGHTS A MAJOR ISSUE
There judgment in the heartbreaking case of The NHS Trust v The Parents & S [2021] EWHC 594 (Fam) raises many issues. Here I want to highlight one aspect of legal funding , (along with pointing to the magnificent steps taken by the barrister, acting pro bono, for the parents). It has to be a matter of grave public concern that parents in these circumstances do not have access to public funding.
THE CASE
The hospital trust sought a declaration that it was not a child’s best interests for life sustaining treatment to continue. This was opposed by the child’s parents. Mrs Justice Judd highlighted the fact that in a care case legal aid was available to parents without means testing. However, in a case where the child’s life was being considered, there was no such funding. Fortunately counsel appeared pro-bono for the parents and, as the judge observed, saved them from a heavy burden.
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Until the day of the hearing, the parents had no legal representation. Parents whose children are the subject of an application by the local authority to take them into care receive full non means and non-merits tested public funding but parents who face an application for the withdrawal of treatment from their child do not, despite the enormous significance of the decision to be made. Not only are these cases medically complex, but emotionally they are as hard as is possible to imagine for the parents. In this case, the father works and his wages mean that the family are over the limit for assistance with representation. Unsurprisingly, they could not afford to pay for a lawyer themselves. Upon hearing of their plight through counsel for the Hospital Trust, Mr. Mylonas QC, Mr. Thomas, counsel from Serjeants Inn Chambers stepped in to help and represent them for free.He assimilated all the documents and spent time discussing the case with the parents. He has represented them with the greatest of skill and care, ensuring that their case was properly put before the court and taking the burden from them of having to do it all by themselves. I am extremely grateful to him, and wish to commend him for what he has done.
What a shocking state of affairs where a state can refuse to fund an application involving a life and death (literally) decision; hard to believe really. It shouldn’t be left to the kindness of pro Bono lawyers to fill this void.