The Court of Appeal has ruled it was unfair that parents of a seriously ill baby were not given an adjournment to allow them to find a lawyer.

In A (A Child: Withdrawal of Treatment: Legal Representation) the parents involved were forced to act as litigants in person as the NHS trust where their child was being treated applied to the Family Division for permission to withdraw treatment.

The parents' previous lawyers, Irwin Mitchell, had been unsuccessful in applying for legal aid. 

A day before the treatment withdrawal hearing, the parents applied for a three-week adjournment to allow them to find representation, saying they needed to organise crowdfunding and that they had identified a lawyer who could act for them if they had the funds.

Mr Justice Hayden rejected the plea for more time, saying that proceedings had already been before the court for over a month and that the treating clinicians and court-appointed expert were in court to give evidence.

Withdrawal of ventilatory support was scheduled to take place the day after his judgment, but the hospital delayed this in the expectation of an appeal.

On appeal, the parents, now represented by counsel working pro bono, argued that the decision breached article 6 of the European Convention on Human Rights. Factors behind the application included 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.

Lord Justice Baker, giving the lead judgment, said there were ‘plainly a number of strong arguments’ for granting an adjournment of last month’s hearing, based on the principles of fairness.

The parents had lost their legal representation a few days before the hearing through no fault of their own and could not find another, this was the gravest and most important matter any parent could face, and the task facing them as litigants in person was ‘daunting’.

‘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,’ he added. ‘And they would be required to do so at a time when their child was lying desperately ill in hospital.’

While there may be cases where a child’s condition was so serious that no adjournment was possible, these were rare and the parents still deserved to put their case. The trust’s application was relisted before another judge at the earliest opportunity, with the hope that legal representation can be obtained for this to happen in the next two weeks.

 

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