Re: A (A Child)

When deciding whether to adjourn proceedings concerning the withdrawal of life-sustaining treatment so that parents can obtain legal representation, the court must apply common law principles of procedural fairness. It must consider all relevant circumstances and balance the parents’ ability to participate effectively against the urgency created by the child’s condition.

The apparent strength of unanimous medical evidence does not remove the parents’ right to challenge it. Refusal of even a short adjournment solely because of the child’s condition will be justified only rarely. If the hearing must proceed without representation, the court must take very great care to give the parents every opportunity to present their case.

A hospital trust sought declarations permitting the withdrawal of mechanical ventilation and other treatment from a gravely brain-injured baby. The parents opposed withdrawal on religious and other grounds. They lost their legal representation through no fault of their own shortly before the final hearing and unsuccessfully applied for a three-week adjournment.

Hayden J proceeded with the parents unrepresented and declared that withdrawal was lawful and in the child’s best interests. The parents appealed, alleging that the refusal to adjourn breached their fair-trial rights under article 6 of the European Convention on Human Rights. The Court of Appeal granted permission on the civil limb of article 6 but determined the appeal principally under domestic common law principles of procedural fairness.

The court also considered whether reporting restrictions should continue to prohibit reporting of the suspected non-accidental injury, the police investigation and possible criminal proceedings.

1. Appeal allowed. The refusal to adjourn was unfair and was set aside. The trust’s application was to be relisted urgently before another judge.

2. The criminal limb of article 6 was not engaged. The specific rights in article 6(3) govern the criminal process. They do not apply to separate civil proceedings merely because their outcome might affect a criminal investigation. The parents’ civil rights under article 6 were engaged, but the correct starting point was domestic law rather than a separate Convention analysis.

3. Procedural fairness serves both accurate decision-making and human dignity. A person whose rights are significantly affected must have a proper opportunity to participate and present relevant material. That principle applies in the family courts’ protective jurisdictions even though the child’s welfare is paramount. The procedure and extent of participation remain sensitive to the circumstances of the particular case.

4. Strong considerations favoured an adjournment. The proceedings concerned the life and death of the parents’ child. The parents had lost specialist representation only days before the hearing through no fault of their own. They unexpectedly faced complex medical evidence, cross-examination and legal argument while their child was critically ill. Their position as non-native English speakers added to those difficulties.

5. The duration of the proceedings, the witnesses’ attendance, the apparent medical consensus, questions previously put to an expert and assistance from the guardian’s counsel carried little or no significant weight against an adjournment. Unanimous evidence which appeared decisive did not extinguish the parents’ right to challenge it. Nor was assistance from another party’s advocate an adequate substitute for representation by their own lawyer.

6. A child’s critical condition may exceptionally make even a short adjournment impossible. Such cases will be rare. The judge’s reasons did not show that he had considered the factors favouring an adjournment and balanced them against the child’s condition. If urgency requires a hearing to proceed, the court must take very great care to give unrepresented parents every opportunity to put their case.

7. The reporting restrictions were modified. Reporting of the suspected non-accidental injury, police investigation and possible criminal proceedings was permitted. Continued anonymity and the remaining restrictions struck a necessary and proportionate balance between open justice and freedom of expression, on the one hand, and privacy and the integrity of possible criminal proceedings, on the other.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1221, the court allowed the parents’ appeal, set aside the refusal to adjourn, and directed that the trust’s application be relisted urgently before another judge. It also modified the reporting restriction order.

2. High Court, Family Division: Hayden J refused the parents’ application for an adjournment and declared that withdrawal of mechanical ventilation and specified other interventions was lawful and in the child’s best interests. No neutral citation for that decision is stated in the judgment.