In A (A Child : Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221 the Court of Appeal allowed an appeal against a refusal to grant an adjournment. It was held that an adjournment should have been granted and a rehearing ordered. This case also highlights the wholly inadequate nature of funding in this type of case. Parents whose children are likely to be taken into care are granted legal aid automatically. Parents in cases where doctors want to withdraw treatment (thus ending the child’s life) have no such automatic entitlement. This is a travesty.
“whilst … there is an apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the State, in the guise of the local authority, and a parent who is facing proceedings of the instant nature brought by the State, in the guise of an NHS Trust, that is a matter for Parliament and not for the court.”
THE CASE
The appellants are the parents of a seriously ill child, kept alive on a ventilator. The treating medical practitioners came to the view that it was not in the child’s best interests to be kept alive by artificial means. An application was made to the court.
The parents sought legal representation for the hearing. They were not eligible for legal aid and were told, several days before the hearing, that the solicitors could not assist.
They sought an adjournment on the grounds that the needed legal representation and hoped to raise funds by crowd funding. Their application to adjourn was refused. The judge granted the application sought.
The parents appealed on the grounds that they should have been granted an adjournment. The Court of Appeal agreed and ordered that the matter be re-heard.
THE COURT OF APPEAL JUDGMENT ON THE APPLICATION FOR AN ADJOURNMENT
The Court of Appeal held that the refusal of the application for an adjournment was unfair.
In his written submissions to this Court, Mr Bruno Quintavalle, who with his instructing solicitors has represented the parents pro bono on the appeal, focused his attention on Article 6. That, of course, provides inter alia as follows
“Right to a fair trial
(1) In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c ) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
Mr Quintavalle argued that both the “criminal limb” and “civil limb” of Article 6 were engaged in this case. So far as the criminal limb is concerned, he submitted that
(1) the concept of “charge” in Article 6 is an autonomous concept which is not confined to cases where an individual has been formally charged with an offence but extends to circumstances where the individual has been notified of an allegation that he has committed an offence;
(2) it therefore includes the parents’ current circumstances having been arrested, interviewed and bailed in the course of the police investigation;
(3) the parents therefore have the rights granted by Article 6 (3), in particular (b), (c) and (d);
(4) although the court’s decision on the Trust’s application would be based only on the child’s best interests, the consequences of the decision to authorise the withdrawal of treatment could have serious implications for the parents since it might expose them to the possibility of being prosecuted for a very serious criminal offence;
(5) accordingly, Article 6 requires that they have the opportunity to be legally represented in the proceedings so as to be able effectively to challenge the evidence relied on by the Trust.
Under the civil limb of Article 6, Mr Quintavalle submitted that
(1) these proceedings engage a number of the parents’ civil rights and/or obligations, including their rights under Article 8, their parental responsibility under the Children Act 1989, and their common law parental rights to give or withhold consent to medical treatment of their child (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112;
(2) the proceedings have been brought because the Trust is asking the court to override the parents’ refusal to consent to the withdrawal of treatment;
(3) Article 6 obliges the provision of legal representation in certain serious cases, where such assistance is indispensable for effective access to the court (Airey v Ireland (1979-80) 2 EHRR 305, McVicar v UK (2002) 35 EHRR 22);
(4) there are a number of factors in this case which require the parents to be legally represented, including the complexity of the procedure, the necessity of cross-examining expert witnesses, the intense emotional involvement of the parents themselves, the speed with which such proceedings have to be conducted and concluded, the fact that the parents are not native English speakers, and the serious consequences of the proceedings;
(5) in a situation where legal representatives are required under Article 6 and the State is unwilling to grant legal aid, it falls to the court to give effect to the State’s obligation, in this case by granting a short adjournment to enable legal representation to be obtained.
We can see no merit in the argument that the parents’ rights under the criminal limb of Article 6 are engaged in this case and would refuse permission to appeal on that ground. The specific rights identified in Article 6(3) relate to the criminal process, and not to a different civil process the outcome of which may have some repercussions for the criminal investigation. On the other hand, we accept that the parents’ civil rights under Article 6 are engaged, as counsel for the guardian accepted, although counsel for the Trust did not. We grant permission to appeal on the basis of the “civil limb”.
In our judgment, however, Mr Quintavalle was mistaken in focussing his submissions solely on Article 6. He was starting in the wrong place.
The Supreme Court has stressed in recent years that the Human Rights Act 1998 (“HRA”) should not normally be treated as the starting point in any case in which human rights issues arise. Although the importance of the Act is “unquestionable”, it does not supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European Court of Human Rights: see R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, at paragraphs 54-63, in particular paragraph 57, where Lord Reed said: “Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.”
As Lord Reed pointed out at paragraph 55, the guarantee of a fair trial under Article 6 is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The correct approach was summarised by Lord Reed at paragraph 62 as follows:
“… The ordinary approach to the relationship between domestic law and the Convention [has been] described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles rather than the judgments of the international court.”
There are at least two fundamental reasons why procedural fairness is important. The first is that it helps to improve the chances of reaching the right result. In John v Rees [1970] Ch 345, at 402, Megarry J noted that there are some who would say that, when the outcome of a case is obvious, why force everybody to go through the tiresome waste of time involved in framing charges against a person and giving them an opportunity to be heard? Megarry J eloquently answered that question in the following way:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”
This leads to the second reason why fairness is important. The last point made by Megarry J in that passage in John v Rees was one also noted by Lord Reed JSC in Osborn, at paragraphs 68-70. When setting out the values which underlie the concept of procedural fairness, Lord Reed pointed out that the purpose of a fair hearing is not only that it improves the chances of reaching the right decision. Those values also include the avoidance of the feelings of resentment which will arise if a person is unable to participate effectively in a decision-making process which affects them. In this way the law seeks to protect the value of human dignity.
As Lord Reed put it at paragraph 68:
“… justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.”
These principles apply to all litigation, including in the protective jurisdictions in the family courts and the Court of Protection. The fact that the welfare of a child is the paramount consideration in proceedings under the Children Act 1989 and the inherent jurisdiction relating to children, and that any act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests does not obviate the requirement for a procedure which pays due respect to persons whose rights are significantly affected by such decisions. The specific procedural requirements will, however, be tailored to take into account the nature of the protective jurisdiction and the extent to which such persons are permitted to participate will depend on the specific circumstances of the case.
Applying the principles of fairness there were plainly a number of strong arguments in favour of granting the parents an adjournment of the hearing on 25 August.
First, the issue before the court was the gravest and most important matter any parent could ever face – the life and death of a child. Decisions about the medical treatment of a child are normally made by the parents without any involvement of the State. Here, the State through the court was being asked to take this responsibility away from the parents. There is clearly an argument that the State should provide non-means tested public funding for all parents in this situation, as it does for the parents faced with an application to place a child in the care of a local authority under Part IV of the Children Act 1989. But as MacDonald J observed in Barts Health NHS Trust v Raqeeb (Costs) [2019] EWHC 3322 (Fam) at paragraph 52,
“whilst … there is an apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the State, in the guise of the local authority, and a parent who is facing proceedings of the instant nature brought by the State, in the guise of an NHS Trust, that is a matter for Parliament and not for the court.”
Nonetheless, the importance of the issue to the parents is manifestly a relevant factor to be considered by any judge faced with an application to adjourn the hearing to allow the parents to seek legal representation.
Secondly, these particular parents had a stronger argument having lost their legal representation only a few days before the hearing through no fault of their own. Some parents may choose to represent themselves from the outset and only decide to seek legal representation at the last minute. Others may instruct lawyers and then withdraw those instructions and seek an adjournment. In those circumstances, there is obviously less merit in the adjournment application. In this case, the parents had wanted to be represented at all times. They initially instructed an experienced and specialist barrister to represent them pro bono. Then they instructed a specialist firm of solicitors who agreed to act on their behalf provided they were publicly funded and acted under their delegated authority while the application for funding was being processed. At the last minute, public funding was refused and the solicitors withdrew. We make no criticism of any of the lawyers instructed (indeed it is evident that all the lawyers involved in these proceedings, for all parties including the parents at an earlier stage, have worked conscientiously and diligently on this difficult case). We observe that in future cases it might be advisable to make contingency plans by identifying alternative lawyers who would be available to represent the parents at short notice on a pro bono basis if public funding is refused. In the event, at very short notice in the middle of August, the parents found themselves unable to find another lawyer to represent them at the hearing, notwithstanding their efforts and those of the Trust lawyers who very creditably attempted to help them find one. As a result, these parents who had not been expecting to represent themselves were suddenly faced with that prospect.
Thirdly, the task they faced in representing themselves was daunting. The preparation and conduct of cross-examination in these cases and the preparation and presentation of legal argument are difficult tasks even for an experienced lawyer. Cases of this sort invariably involve complex medical evidence and usually voluminous medical records. Even a parent who had been involved in the proceedings and was familiar with the evidence and issues would find it very challenging to conduct a hearing when they had not been expecting to do so. And they would be required to do so at a time when their child was lying desperately ill in hospital. In our judgment, the fact that the parents are the subject of a criminal investigation adds nothing to the weight of the argument. But for this couple, who are not native English speakers, such a task would be even more difficult.
All these points were arguments in favour of the judge granting a short adjournment. He may have had them in mind when refusing their application. But none of them is mentioned in the reasons for his decision set out at paragraphs 43 to 46 of the judgment. Looking at those paragraphs, the judge took into account (a) the fact that the proceedings had been going on for a month, (b) the fact that the medical witnesses were in attendance to give evidence, (c) the child’s parlous condition, (d) the judge’s impression that the parents “broadly accepted the weight of the medical evidence, which permits of little ambiguity and reflects a consensus”, (e) the fact that some questions had been put on the parents’ behalf to Dr B before the hearing, (f) the fact that other questions reflecting the parents’ position were put on behalf of children’s guardian during the hearing, and (g) the judge’s assessment that the issue was “a conflict between medicine and faith”.
Most of these arguments seem to us to carry little if any weight on the adjournment application. The fact that proceedings had been continuing for a month was of little relevance, given the circumstances in which the parents found themselves without representation. The fact that the witnesses were at court was of course regrettable but not a matter which should have carried any significant weight in the decision. If there was a strong case for an adjournment, arrangements would have to be made for an adjourned hearing when the witnesses could attend again. Of course, it is now the normal practice for medical witnesses to give evidence by video link which allows for much greater flexibility.
We are not convinced that the points made by the judge about the parents’ case in his explanation of his reasons for refusing the adjournment should have carried significant weight, and, whilst we accept that in assessing fairness one must consider the proceedings as a whole, we are not persuaded by the argument advanced both by Mr Lawson for the Trust and Mr Anderson for the guardian that the appeal should be dismissed because the proceedings as a whole were fair. At the outset of the hearing, it could not be said with precision what points would be put on behalf of the parents or the extent to which they would wish to challenge the medical evidence. The fact that through the solicitors previously instructed they had put questions to the expert had narrowed the issues did not eradicate the parents’ right to challenge that evidence at the hearing. It was helpful of the guardian’s counsel to put questions which she thought the parents might wish to raise but this cannot be a completely satisfactory alternative to the parents putting their own questions through their own lawyer. And even if the judge was right to say that the central dispute was “a conflict between medicine and faith”, that did not undermine the strength of their argument for an adjournment.
The fact that on paper the medical evidence all seems to point one way does not mean that the parents should not have an opportunity to challenge it. Earlier in this case, the treating clinicians had declared A dead on the basis of several brain stem tests, only to rescind the declaration when he started breathing again. The Trust then withdrew its application to the court for a declaration of death. Although the parents may have characterised this as a miracle, it can also be seen as one of those examples identified by Megarry J in John v Rees of “open and shut cases which, somehow, were not”.
Ultimately, the only argument against an adjournment which should have carried any significant weight was what the judge described as the child’s “parlous condition”. Plainly, there may be cases where, balancing the arguments, a judge may conclude that the child’s condition is so serious that no adjournment however short is possible. But such cases will be rare and in this case there is nothing in the note of hearing or the judgment to indicate whether and if so how the judge took into account the factors in favour of an adjournment and balanced them against the child’s condition. They are not mentioned at all.
In the rare case where a judge concludes that a child’s condition is so serious that the hearing must proceed, very great care must be taken by the court to ensure that the parents have every opportunity to put their case. Here, the notes of the hearing and the judgement show that the judge was typically compassionate and understanding towards the parents. He plainly allowed them to participate. We do not accept Mr Quintavalle’s characterisation of their involvement as being “mere spectators”. But their contributions were limited to the cross-examination of one witness and the giving of unsworn evidence. Their case was not as central to the hearing as it would have been had they been represented.
It was common ground before us that, although the decision whether or not to adjourn proceedings is a case management one, in which the first instance judge enjoys a wide discretion, and that an appellate court will be reluctant to interfere with that decision, the question for the appellate court is whether the refusal to adjourn was unfair: see Solanki v Intercity Technology Ltd [2018] EWCA Civ 101, at paragraphs 32-34 (Gloster LJ).
In the circumstances, we conclude that the judge’s decision to refuse the adjournment was unfair and must be set aside. We reach that conclusion by applying common law principles of fairness. In the circumstances, it is unnecessary to rely separately on Article 6, and consequently we do not address the detailed submissions made to us on the application of the article to the circumstances of this case, nor the extensive range of legal cases cited. The key proposition is that expressed by McFarlane LJ (as he then was) in Re G-B (Children) [2013] EWCA Civ 164 at paragraph 49:
“It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings.”
That is how we have approached this appeal. Looking at the specific facts of this case, the judge seemingly did not have regard to a number of the elements relevant to the decision to adjourn.
The Trust’s application must be relisted before another judge at the earliest opportunity. In the first instance, we would direct that it be listed for a case management hearing next week, and we have established that Poole J will be able to conduct that hearing on the afternoon of Tuesday, 13 September. Although it will be a matter for him to determine the directions, the substantive application must plainly be heard as soon as possible in view of the child’s serious condition. Although the parents’ application dated 24 August referred to seeking further expert evidence, it may be that Poole J will consider this unnecessary and disproportionate, given that Dr B has already been instructed jointly by the parents and guardian to provide just such an opinion. In all the circumstances, we would hope that legal representation can be obtained, if necessary on a pro bono basis, to enable the substantive hearing to take place in the next two weeks.
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