Gard (A Child), Re

On an application to revisit an earlier best-interests decision concerning a child’s medical treatment, the court should alter its decision only on the basis of compelling new evidence. The court must decide the child’s best interests on evidence, not public opinion or speculation. Where a doctor gives evidence about proposed treatment, the court must be able to rely sensibly on that evidence, which ordinarily requires the doctor to have seen the child. Under Children Act 1989, section 1, the child’s welfare is the court’s paramount consideration. A hospital has no unilateral power to determine the child’s fate; where disagreement exists, it must seek the independent judgment of the court. Mediation should be attempted in cases involving profoundly difficult treatment disputes.

Great Ormond Street Hospital applied to confirm declarations made on 11 April 2017 concerning Charlie Gard’s medical treatment and, in light of the unusual circumstances, sought orders in equivalent terms. The earlier declarations found that continued artificial ventilation and nucleoside therapy were not in Charlie’s best interests and that palliative care was lawful and appropriate.

The parents had pursued appeals to the Court of Appeal, the Supreme Court and the European Court of Human Rights. Those remedies had been exhausted. They then relied on proposed treatment abroad and further medical evidence, including evidence from Dr Hirano, to contend that the earlier assessment had been overtaken by events. The central issue was whether the new evidence justified reopening the best-interests decision.

1. The application. The court confirmed the declarations made on 11 April 2017. It declined to make a mandatory order.
2. Reopening the earlier decision. Having heard extensive medical evidence in the earlier proceedings and having had the decision reviewed through three levels of appeal, the court could change its decision only on the basis of compelling new evidence. The court remained willing to consider new and material evidence, but the threshold was not met merely by assertions, international interest or partially informed opinion.
3. Evidence and medical treatment. The court’s task was to determine what was in Charlie’s best interests, rather than what might benefit scientific research. Where a doctor gives evidence about the prospects of treatment for a child whose future is before the court, it is a remarkably simple proposition that the doctor should see the child before the court can sensibly rely on that evidence. Subsequent MRI scans demonstrated the severity of Charlie’s condition, and the medical consensus, including the parents’ and Dr Hirano’s position, was that experimental treatment could not help him.
4. Paramount welfare principle. The hospital’s application was governed by section 1 of the Children Act 1989. The child’s welfare was the court’s paramount consideration. The hospital did not possess power to decide the issue unilaterally. The court’s independent determination, with Charlie represented by a guardian, was required because the parents and hospital could not agree.
5. Mediation. The judge stated that mediation should be attempted in all comparable cases, even where agreement about life-sustaining treatment appears impossible, because it may improve the parties’ understanding of each other’s positions and of the court process.

• Court of Appeal: Permission to appeal was granted on two new grounds, but the appeal was dismissed and permission to appeal to the Supreme Court was refused.
• Supreme Court: The parents’ application for permission to appeal was dismissed on 8 June 2017.
• European Court of Human Rights: The application was declared inadmissible on 28 June 2017.
• High Court (Family Division): The earlier declarations were confirmed on the basis of the further evidence and the prevailing medical consensus.