12:47, July 24 63 0 theguardian.com

2017-07-24 12:47:02
Despite Charlie Gard’s tragic story, we must respect the process of our courts

No one can be other than deeply moved by the sad story of Charlie Gard. His short life has been one of illness and suffering. His parents have lived every hour of the past 11 months with the nightmare that is every parent’s worst fear – what’s going to happen to Charlie?

It is common, but glib, to talk of Charlie Gard as a “case”; he is not a case, he’s a very sick, terminally ill little boy with a rare genetic condition and consequent brain damage. But he has also become a “case” – challenging us how to respond to his condition; a case that has attracted worldwide attention. His parents, his doctors and nurses and Great Ormond Street hospital have found themselves in a maelstrom of attention, opinion, concern and worse, stretching from the White House to the Vatican.

Amid the grief and sadness, there is, however, a value, indeed a need, to stand back and think about what we can learn. Around 20 years ago, I was just about to leave for the airport in Auckland when I got a call from some lawyers. It was 7am. Would I meet them urgently in half an hour to advise on a case? I said of course, provided I could catch my plane.

A boy had suffered a catastrophic injury while being operated on: his neck had been broken. Though alert and talkative, he was paralysed. His parents had told his doctors that they wanted care to be withdrawn (he was on a ventilator) so that he could die peacefully. He wasn’t terminally ill, but they thought it best given what the future would hold.

There was no precedent in New Zealand. My advice was that the parents’ views were not the last word; the lawyers should go to court, ensure that the child was separately represented by a lawyer, and that the only question for the court was what was in the child’s best interests. The advice was followed. The child was made a ward of court, was cared for and lived on.

I’m sure that those who have involved themselves in the case of Charlie Gard would applaud what happened in Auckland. But if they do, they would also have to acknowledge a number of things that have been part of our approach to the care of children since the 19th century. The first is the most fundamental: as a society, we must choose how to decide such heartbreaking cases. Of course each child is different, but do we accept that there should be principles and rules, whatever the circumstances, that guide us as we try to work out what’s best? We can, of course, reject such a view and choose to go with the heart and emotions. But if we do, whose heart should prevail when there are conflicting views? Where there is conflict, how do you resolve it? Alternatively, we can reason our way through, cold as this may appear. We can accept the idea of principles and rules. And, if reason is to prevail, you need to analyse how to proceed.

These are the steps. The first is to recognise that children do not belong to their parents. Second, when a claim is made that parents have rights over their children, it is important to step back and examine the language used. We need to remind ourselves that parents do not have rights regarding their children, they only have duties, the principle duty being to act in their children’s best interests. This has been part of the fabric of our law and our society for a long time. Third, if we are concerned with the language of rights, it is, of course, children who have rights; any rights that parents have exist only to protect their children’s rights.

Now, in giving effect to a child’s rights, the parents’ views as to their children’s interests should usually be respected. But parents cannot always be the ultimate arbiters of their children’s interests. If parents, for example, insist on subjecting their child to a particular diet that, in the view of others with acknowledged expertise in the subject, will cause the child harm, we do not stand by. We intervene to safeguard the child.

When such concerns arise, there has to be a mechanism to decide the circumstances in which parents’ views should not prevail. That mechanism has to be a trustworthy and independent source of authority, sometimes a local authority, but ultimately, as ever in a civic society, a court. The court’s sole concern must be, can only be, for the child and the child’s interests. Evidence and views, particularly those of the parents, must be listened to. The court must then decide and, crucially, make its decision and reasoning public, exposing it to scrutiny and holding it to account. The court is not infallible. That’s why we allow for appeals; a kind of second thought. But, ultimately, we are not in the realm of there being a right answer. We are in the realm of judgment, reasoned judgment, and we look to the courts to provide this.

This process depends of course on acceptance of the supremacy of reasoned argument over passion and the acceptance of the independence and authority of the courts. Campaigns against the courts, whether led by tabloid newspapers, organised through social media or exploited by sectional and religious groups, are increasingly a feature of modern discourse. It is one thing to comment on or criticise a particular decision. It is a very different thing to attack the institution of the courts.

Here, in Charlie Gard’s case, the call has been to keep the courts out; they don’t understand. Only the parents should decide: let passion prevail. Those behind such calls should reflect on what they wish for in case they get it. A whole system designed to address dispassionately the rights and interests of children would be pushed aside. And perhaps they should think of that little boy in Auckland.