A High Court judge was wrong to refuse an adjournment sought by parents of a brain-damaged baby who lost their legal representation shortly before a hearing on withdrawing treatment, the Court of Appeal has ruled.
Lord Justice Baker said that, although Mr Justice Hayden had been “compassionate and understanding towards the parents” during the hearing, they did not have as central a role in it as they would have done had they been represented.
Baby A was born in April and is being kept alive on a ventilator after sustaining “two devastating injuries to his brain”.
“The medical opinion of the treating clinicians is that there is no hope of any recovery and that he is dying. Although it is impossible to be certain about it, there is no evidence that he is suffering pain,” Baker LJ said. “But his condition is deteriorating rapidly and it is proving very difficult to treat him.”
The parents, despite a good relationship with the clinicians, oppose the trust’s application to permit the withdrawal of treatment due to their Muslim faith, believing “that the decision whether he lives or dies is a matter to be decided by Allah, not by man”, Baker LJ recorded.
At the outset of the hearing late last month, Hayden J refused the application to adjourn to allow the parents to be represented and proceeded to hear evidence. The following day, he ordered that it was lawful and in the baby’s best interests for mechanical ventilation to be withdrawn.
The parents appealed solely on the ground that the refusal to adjourn breached their right to a fair trial.
The court recounted how Irwin Mitchell had been acting for the parents but its application for legal aid was refused on the grounds that the parents’ means exceeded the prescribed limits. Having failed to obtain other funding, Irwin Mitchell withdrew, leaving the parents only three clear days before the hearing to find other representation.
Counsel’s instructions were withdrawn and she was not available to appear pro bono. “Extensive efforts were made by the parents, assisted by the trust’s lawyer, to find alternative [free] representation, to no avail,” Baker LJ said, adding that he was not making any criticism of the lawyers.
The parents told Hayden J that they were working to organise crowdfunding for the legal costs and had identified a lawyer who was able to act for them if they were in funds.
Barrister Bruno Quintavalle – who also acted for the family of Archie Battersbee – and London firm TKD Solicitors, took on the appeal on a pro bono basis.
The Court of Appeal said the judge was wrong to put weight on most of the reasons he gave for refusing the adjournment, such as that the proceedings had already been before the court for over a month and the treating clinicians and court-appointed expert were present to give evidence.
Rather, “there were plainly a number of strong arguments in favour of granting” the adjournment. First was the gravity of the issue and second was the fact that the parents had 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.”
He added: “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.”
Third, the task the parents faced in representing themselves in a case of this nature was “daunting”.
Baker LJ said the fact that on paper the medical evidence all seemed to point one way did 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,” he observed.
While Hayden J was “typically compassionate and understanding towards the parents” and allowed them to participate in the hearing, “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”.
The court decided: “In the circumstances, we conclude that the judge’s decision to refuse the adjournment was unfair and must be set aside.”
It did so by applying common law principles of fairness, meaning it was unnecessary to rely separately on article 6. The court said article 6 should not have been the primary argument.
It ordered that the trust’s application be relisted before another judge at the earliest opportunity. “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.”