A (A Child) (Withdrawal of Treatment: Legal Representation)

This appeal concerned whether the High Court judge acted unfairly in refusing a short adjournment to allow the parents of a critically ill infant to obtain legal representation before a final hearing that authorised withdrawal of life-sustaining treatment. The Court of Appeal held that the parents' civil rights under Article 6 ECHR were engaged but resolved the case by applying common-law principles of procedural fairness rather than developing Convention law. The court concluded the judge had not given adequate reasons for refusing the adjournment, had failed to balance relevant factors (including the very recent loss of the parents' lawyers through no fault of their own, the complexity of the medical evidence, language difficulties and the gravity of the issues), and so the refusal was unfair. The judge's decision was set aside and the substantive application was remitted for relisting for urgent case management. The court also modified a reporting restriction order to permit reporting of the matters listed at paragraph 4(d)(i)-(iii) of the original order (non-accidental injury, police involvement and potential criminal proceedings) while maintaining anonymity for the family and other restrictions.

This is an appeal from Hayden J in the Family Division in proceedings in which an NHS Trust sought a declaration that it was lawful and in the child's best interests for life support (mechanical ventilation) to be withdrawn from a baby (A) who had sustained catastrophic brain injuries. The baby had originally been declared brain-stem dead but that declaration was rescinded when spontaneous respiratory effort returned. The Trust amended its application to seek an order under the child's best interests for withdrawal of life support.

The parents had been represented at an earlier stage but their solicitors withdrew after a refusal of legal aid days before the final hearing. They applied on the morning of the final hearing for a short adjournment to obtain representation; the judge refused and proceeded to hear extensive, largely unchallenged medical evidence and made an order authorising withdrawal of ventilation and withholding of other interventions. The parents were present but unrepresented and gave unsworn evidence.

The appeal to the Court of Appeal was limited: the parents did not directly challenge the judge's best-interests conclusion but contended that refusal to adjourn so they could obtain legal representation breached their right to a fair hearing under Article 6 ECHR. The Court (Baker LJ, Singh LJ and Phillips LJ) granted permission to appeal on the civil limb of Article 6 but determined the matter on common-law fairness principles. The court analysed (i) the nature of the application (declaration/authorisation to withdraw life support), (ii) the issues framed (whether refusal to adjourn was fair and whether Article 6/civil procedural fairness required legal representation or an adjournment), and (iii) the reasoning.

The court accepted that the civil limb of Article 6 engaged the parents' rights but emphasised that the Human Rights Act does not supplant domestic common-law protections and procedural rules. Applying ordinary fairness, the court identified several strong arguments for an adjournment: the unique gravity of the decision (life or death of a child), the fact the parents had only very recently lost legal representation through no fault of their own, the complexity and expert medical nature of the evidence, the parents' limited English, and the emotional context. The court found that the judge's stated reasons concentrated largely on the duration of the proceedings, the fact witnesses were present and the child's parlous condition, and did not record whether or how he weighed the factors in favour of an adjournment. The appellate court concluded that the refusal was unfair in all the circumstances, set aside the refusal and remitted the Trust's application for urgent relisting and case management. The court also dealt with and modified the reporting restriction order to permit reporting of certain matters while preserving anonymity for the family.

The court directed that the relisting should occur urgently and suggested a case management hearing for 13 September 2022. The court expressed the expectation that pro bono representation might be found and that the substantive hearing should proceed promptly given the child's condition.

Appeal allowed in part. The Court of Appeal held that the judge's refusal to grant a short adjournment to enable the parents to obtain legal representation was unfair under common-law principles of procedural fairness (the civil limb of Article 6 being engaged but not determinative). The judge had failed to address and balance a number of material factors; his decision was set aside and the Trust's application remitted for urgent relisting and case management. The reporting restriction order was modified as described in the judgment.

Appeal from Hayden J (Family Division) (FD22F00036). Permission to appeal was refused by the judge; an appeal notice was filed on 31 August 2022 and a stay was granted by Underhill LJ. A case management hearing took place on 2 September 2022 before Underhill and Baker LJJ. The Court of Appeal heard the appeal on 7 September 2022 and handed down judgment on 9 September 2022 ([2022] EWCA Civ 1221).