The European Court of Human Rights (ECHR) has ruled that Charlie Gard, a little boy with a rare condition which has left him on life support, must continue receiving treatment for a week whilst the court considers the case.
Charlie’s parents attended an emergency hearing at the Supreme Court yesterday to ask permission to appeal the decision to turn off their 10 month old baby’s life support, and allow them to travel to America with Charlie for pioneering treatment which could improve his condition. Their appeal was turned down, and so their legal team appealed to the European Court.
The team will be arguing that the decision is in direct breach of Charlie’s and his parents’ right to family life under Article 8 of the Human Rights Act.
The ECHR hopes to make a statement on Tuesday as to whether it will accept the case. In the meantime it has ordered that Charlie must stay on life support, which was due to be switched off today, until it has come to a decision. This is an exceptional measure, which the ECHR is able to make under its current regulations, as removing Charlie’s treatment would lead to a “real risk of irreversible harm.”
As a result of this development, the Supreme Court’s decision has effectively been put on hold. Lady Hale, one of the three justices taking part in the hearing at the Supreme Court, still remains one of our favourite judges despite taking what we felt was a narrow view of the law in relation to the ‘significant harm’ threshold and its context. She makes a poignant observation:
“Any court will have the utmost sympathy for parent exploring every possible way of preserving the life of their baby son… As parents we would be all likely to do the same. … However, as judges, we are concerned only with the legal position.”
So what is the legal position? Charlie’s parents’ legal team had argued that the decision to switch off life support and seek out alternative treatment should rest with his parents unless it could be shown that to do so would cross the ‘risk of significant harm’ threshold. This threshold is part check list, part subjective reasoning, which is what makes it more fluid in nature, and therefore its terms more dynamic than those found in legislation. It was specially designed that way, by Lady Hale, so that it could respond to child welfare developments as they came about. However the Supreme Court judges took the view that the hospital was entitled to bring proceedings and that this right had to be prioritised over any new interpretation given on the concept of significant harm.
We would modestly disagree. Courts create precedent, which is the active interpretation of the law as it should be applied in society at any given moment in time. This case should have benefited from that process in its purest sense.
Researching Reform wishes Charlie Gard and his family luck for the next appeal.