A couple who want to take their seriously ill baby to the US for experimental treatment against the wishes of the hospital in which he is being kept on life support have been refused permission to appeal by the Supreme Court.
Chris Gard and Connie Yates, whose son Charlie suffers from MDDS, were refused permission to appeal the High Court’s judgment yesterday, in which a judge concluded the treatment would fail the best interest test; that it would be “futile”.
The Supreme Court ordered that a further stay of the High Court’s order be granted until 5pm today in order that the European Court of Human Rights (ECtHR) can determine the appellants’ request under rule 39 of the rules of that court.
This means the issue will not be considered further by the Supreme Court, but the appellants now have the opportunity to ask the ECtHR in Strasbourg to give an indication to the UK of any interim measures which it (or the president of that court) considers should be adopted in the interests of the parties or for the proper conduct of the proceedings before it.
The parents said the test used was the wrong one.
Lady Hale (pictured) explained: “The parents argue that this is not the right legal test. In this sort of case the hospital can only interfere in the decision taken by the parents if the child is otherwise likely to suffer significant harm. But that apart, it is argued, decisions taken by parents who agree with one another are non-justiciable. Parents and parents alone are the judges of their child’s best interests. Any other approach would be an unjustifiable interference with their status as parents and their rights under article 8 of the European Convention on Human Rights.”
She added, however, that “there are several answers to this argument”.
“Firstly, applications such as this are provided for by statute: the Children Act of 1989. There was an application for a specific issue order in this case, as well as under the inherent jurisdiction of the High Court. Both are governed by the same principles. Section 1, sub-section 1 of the Children Act 1989 provides that the welfare of the child shall be the paramount consideration in any question concerning the upbringing of the child in any proceedings. This provision reflects but is stronger than Article 3.1 of the United Nations Convention on the Rights of the Child, which says that in any official action concerning the child, the child’s best interests shall be a primary consideration.”
Furthermore, the Deputy President of the Supreme Court noted that where “there is a significant dispute about a child’s best interests the child himself must have an independent voice in that dispute. It cannot be left to the parents alone. This has happened in this case because Charlie has been represented by a guardian”.
“That guardian has investigated the case in his best interests and the guardian agrees with the hospital and with the judge’s decision.”
Lady Hale said: “Finally, the European Court of Human Rights has firmly stated that in any judicial decision where the rights under article 8 of the parents and the child are at stake, the child’s rights must be the paramount consideration. If there is any conflict between them the child’s interests must prevail.
“In short, therefore, it is quite clear that the hospital was entitled to bring these proceedings, and the judge was required to determine the outcome of these proceedings. In doing so, he applied the right test and his factual findings cannot be challenged on appeal. It follows, that the proposed appeal does not raise an arguable point of law of general public importance and so permission to appeal must be refused.”