The law says the best interests of the child always come first. But deciding what those are can be a matter of anguished contention. Connie Yates and Chris Gard, the parents of Charlie Gard, the little boy born with an extremely rare form of mitochondrial mutation, were told by a judge yesterday that it was not in their son’s best interests for him to be taken to the US for experimental treatment, and they think the judge was wrong.
The judge, Mr Justice Francis, who told doctors at Great Ormond Street that they could withdraw all but palliative care, was to all intents and purposes delivering a death sentence. He knew that. They knew that.
What was extraordinary is that the state – our representative in court – says that although it rightly felt it had a duty to protect Charlie, it had no role in making sure that his parents’ view of what was in his interest was properly represented. Yates and Gard were not entitled to legal aid. The judge told the court that he found this “remarkable”. This is not the sort of thing judges normally say.
Fortunately for the parents, they found a legal team through the solicitors Bindmans, who were prepared to work for free. They did not end up, as people in private law cases often do, faced with a choice between representing themselves or not going to court at all. It is all the more absurd that had it been a question of whether Charlie should be taken into care – a life-changing but not a life-threatening decision – the state would have paid for their lawyers. That is because the case would have involved a local authority, another public body. Yet for Charlie’s parents, it would be hard to distinguish between a well-funded public body like a council, and another – the NHS.
This is not about the rights and wrongs of this heart-rending case, where Charlie’s parents wanted to overrule the doctors who felt it would be painful and futile, and take their son to the US in the very remote hope that an entirely untested treatment might help him. But it is a reminder of the way that in other courts the state is skewing the balance of justice in its own interests. The law is becoming the preserve of the powerful.
The Lord Chief Justice Lord Thomas said as much more than a year ago when he used his annual report to highlight the injustice of a system where the law was unaffordable to all but the rich. He repeated the criticism in his report for 2016: “A properly funded justice system is a core function of the state”, a role that included “holding the democratic government to account and ensuring it acts fairly and according to law”.
It is shocking to discover that even in a case where the court is having to decide a matter that is literally a choice between life and death, there is no legal aid. But it is only the most shocking of a long list of areas where it is no longer possible to get state help to challenge a perceived injustice: the list includes housing, welfare, debt, immigration, medical negligence and family law cases, unless they involve domestic violence. There are prohibitive charges on employment tribunals, which even the Ministry of Justice now acknowledges as creating unintended consequences. A 500% increase in fees for immigration and asylum appeals was only rescinded after a nationwide campaign.
This is the work of Chris Grayling, the most disastrous justice secretary yet appointed, who was in the post between 2012 and 2015. With apparently only the haziest grasp of how access to justice is a cornerstone of the constitution, in his three years as minister he took a machete to the whole system. His successors have been trying to patch it up ever since.
Excluding citizens from access to the law is a process of disempowerment. That is bad enough. What is worse still is that it enhances the lethal sense of government and its agencies that they will not be held to account. Lawyers are not often regarded as heroes of society. But a just society can’t do without them.