They’ve finally done it. They’ve killed poor Charlie Gard. Neither the NHS, the judiciary nor the European Court of Human Rights has any idea what’s coming.
I’ve refrained from commenting fully on this case whilst the legal proceedings were ongoing and poor little Charlie was still with us. Tragically, he was terminated on Friday July 29th, a dark day in Britain’s legal history.
Maybe what follows is a bit harder-hitting than most barristers, practising or suspended, would vouschafe, but so be it. I feel very strongly about this case. I also feel a duty to the legal system, of which I was a part for many years, including 11 as a member of the part-time immigration judiciary.
The bomb hoax conviction was always a nonsense, and could only have been obtained, as it was, by jury-tampering. I have appeared before at least two of the learned judges in the Charlie Gard case (Lord Justice McFarlane and Lady Justice King), as it happens in family law cases. Since I entertain expectations of resuming my career at the Bar, readers will understand that however strongly expressed, my criticisms of the judges involved have to be moderated for sound professional reasons. Since moderation is my middle name (!) this comes easily.
For the avoidance of doubt I have read each of the judgments. The neutral citation for the principal judgment of Mr Justice Francis in the Family Division is  EWHC 972 (Fam). The Court of Appeal judgment is at  EWCA Civ410.
Contrary to ill-informed mainstream media commentary neither the Supreme Court nor the European Court of Human Rights ever heard the case of Charlie Gard, as opposed to giving it brief consideration in limine. The Supreme Court refused permission to appeal in a brief judgment delivered by Baroness Hale of Richmond on June 8th. The ECHR declared the application by Charlie’s parents, Chris Gard and Connie Yates, to be inadmissible, i.e. the court never heard the case.
The guardian ad litem, supposedly acting in Charlie’s best interests, no offense intended, went along with Francis J’s judgment and gave the parents no support whatsoever in the Court of Appeal, Supreme Court or the ECHR. I have experience of guardians ad litem. They are invariably salaried officials nominated by Cafcass, an utterly useless quango, no offense intended, long overdue for abolition.
Cafcass nominally reports to the Justice Secretary, that house-trained idiot David Lidington, again no offense intended, but his supervision is a farce. In practice, like almost all quangos, Cafcass reports ultimately to the Cabinet Office. Throughout the case the guardian ad litem backed the NHS against the parents. This is normal – if you’re representing a parent in a family law case, as I have done, you know that Cafcass are the enemy. They treat you as such and that’s how you should treat them.
As a courtesy I shall be forwarding a copy of this article to the parents’ excellent solicitors, if I may say so, Harris Da Silva, who acted throughout pro bono, to their immense credit. Great Ormond Street Hospital (GOSH), which used to be a well-regarded children’s hospital (sadly, its reputation has been trashed by the Charlie Gard case), is part of the NHS. It is a state-run institution and had the option, as does any government body or department, of paying the reasonable, taxed costs of the parents in what was clearly a test case.
The family are not wealthy. Chris Gard is a postman. Knowing the family lacked means, GOSH chose to try and shut them out of the case by not offering to pay their legal costs, at the same time as instructing Queen’s Counsel themselves. GOSH also bounced the parents’ legal team with documents at the last minute. Their with respect ruthless QC made the contents of the final, damning, medical report known in court before it was shown to the parents, causing Connie Yates in particular much distress.
For the avoidance of doubt, although at least one of the parents’ counsel, Richard Gordon QC, is known to me, I am writing this article entirely independently of the family or any of their lawyers. Richard Gordon, no offense intended, is a Remoaner (I hope that I am not doing him an injustice!) and to my certain recollection we have never agreed about anything.
Charles (Charlie) Gard was born on August 4th,2016, with a healthy birth weight, 8lb 3oz. He thrived initially but then failed to put on weight and started showing signs of a mysterious illness. His remarkably devoted parents, who between them spent over 3,000 hours by his bedside, promptly sought medical attention.
Charlie’s GP referred him quite quickly to GOSH, which at that time was regarded as the best children’s hospital in Britain and one of the best in the world (before it was nationalised it was the best). There is no reflection on Charlie’s doctor – no medical man or women could reasonably have foreseen that GOSH would not only refuse to treat the child but take active steps to prevent him being taken to a hospital with better facilities, which could.
Not long after admission, Charlie, sadly, was diagnosed with a rare genetic disorder, infantile onset encephalomyopathic mitochondrial DNA depletion syndrome (MDDS). Charlie’s MDDS was of the very rare RRM2B type and was biallelic, that is to the mutations were derived from both parents, neither of whom had any inkling that they risked passing on this illness to their children. The NHS is unable or unwilling to treat patients with RRM2B MDDS.
However Columbia University Medical Center have done pioneering research in this area. Professor Michio Hirano told Francis J. that he believed that Nucleoside Bypass Therapy (NBT) might benefit Charlie. NBT has not been used successfully to treat patients with MDDS, which is vanishingly rare, but has been used with some success to treat patients with a less severe strain of MDDS, TK2.
GOSH were aware of Professor Hirano’s research as early as October, but seemingly failed to tell Charlie’s parents. At any rate Francis J. records that the parents only found out about NBT from online researches.
Nothing was done to treat Charlie. He started fitting, it would seem at an unexpectedly early stage of his illness. His parents complained that nothing was done for many hours to treat the first fit. Their evidence does not seem to have been contradicted.There has been no serious investigation of the cause of the fitting.
In March GOSH applied to the High Court for a declaration that that it would be unlawful to withdraw life support. They did NOT apply to have Charlie made a ward of court.
GOSH claimed that Charlie was brain dead, but this was disputed by the parents. By the end of the long drawn-out legal proceedings the delay was such that Charlie, sadly, could no longer be treated. The High Court, Court of Appeal and Supreme Court all accorded other cases priority over Charlie’s.
At so stage did GOSH ever offer treatment, save for palliative care and treatment dealing with Charlie’s symptoms. No alternative to NBT was offered, that is to say the medical choices were NBT, with a chance, albeit no more than that, of life, and death.
The medical errors
It is perfectly clear that GOSH has no expertise in treating RRM2B MDDS and that Professor Hirano at Columbia is the world’s leading expert in this area. GOSH should have referred Charlie to Columbia for treatment in November.
This error was compounded by the failure to get Charlie’s full medical records to Professor Hirano. Whilst GOSH discourteously criticised him for not having read the full medical file, it was GOSH’s responsibility to get that to him.
GOSH convinced themselves that NBT could not cross the blood/brain barrier, but they had no medical evidence to back this up. It now seems that they were completely wrong, with respect.
Put shortly, an NHS hospital with no real expertise in a rare disease, unable to offer treatment itself, failed to refer a patient to an American hospital which was willing to treat its seriously sick patient. One of the doctors treating Charlie told Francis J. that American doctors had a different culture and “were willing to try anything”. This apparently was meant as a criticism. If by that she meant that American doctors try harder to save their patients then I am inclined to agree with her, with respect.
The legal errors
GOSH failed to make Charlie a ward of court, nor did they apply for an injunction. These with respect surprising errors meant that Charlie’s parents retained legal responsibility for him. In theory at any rate, once funds were available, they could have withdrawn Charlie from GOSH and arranged to have him transferred to Columbia.
The UK courts misread the Children Act 1989 with respect, in particular s.1. Any common lawyer with expertise in statutory interpretation would surely limit the application of s.1 to its context, i.e. orders made as regards the upbringing of children. The Children Act seems to have been given a far wider ambit by the courts than Parliament intended.
At no stage did the appellate courts pick up on the implications of the failure to make Charlie a ward of court, with respect. This was important, as they were extending decisions in wardship proceedings, where parental responsibility is transferred to the court, to Charlie’s case, almost without argument.
Furthermore once Francis J.’s declarations were treated as injunctions, which they weren’t, they had the effect of confining Charlie not only to GOSH but also to the UK. It is possible for an order confining a subject to the realm to be made – it’s called a Writ of Ne Exeat Regno – but at no stage did GOSH ever apply for a Writ of Ne Exeat Regno.
This resulted in the extraordinary situation of a desperately sick child effectively being imprisoned in a British hospital, when an American hospital was willing and able to treat it. The reasoning, if reasoning is not too strong a word with respect, of both the Court of Appeal and the Supreme Court, is thin. Neither court really grappled with the distinction between cases where irresponsible parents, typically religious nutters like Jehovah’s Witnesses or Methodists, want to take a child out of hospital and deny it treatment altogether and cases like this one, where loving parents want to transfer their child to a better hospital, in this case a world-class facility, for pioneering treatment by the world’s leading expert in the field.
Since funds were available to treat Charlie privately, thanks to the generosity of the public, it also unclear why the courts continued to regard him as an NHS patient. I repeat that this was not a case of the courts having to decide between competing treatment regimes: GOSH weren’t offering Charlie treatment at all. The NHS is out of its depth with this type of MDDS and simply can’t treat it.
With respect, the courts also failed to ensure that the proceedings were fairly conducted. Nothing was done to ensure equality of arms, nor to stop GOSH bouncing the parents with evidence or new developments. Key findings of fact were not made. The issue of tampering with the medical records, was not addressed, e.g., although the parents raised it publicly, nor did the courts direct disclosure of the records and minutes of financial discussions by NHS managers.
The NHS is not run by doctors. It’s run by bureaucrats. Decisions about sending a patient abroad for expensive treatment are not usually made in the patient’s interest, but the bureaucrats’. Francis J. averred that the case was not about money, but with respect His Lordship never saw any of the internal documents about the expense of sending Charlie to New York for treatment.
Since the NHS applies health rationing, inevitably, as it’s a single-payer system free at the point of use and therefore wide open to abuse by non-nationals, the assumption that funding didn’t come into it with respect was absurd. Of course funding was an issue, so much so that GOSH doctors were forced to consider administering NBT therapy themselves, without any previous experience of it, no doubt trusting themselves to read the instructions on the packet properly.
The political implications for the NHS and Obamacare
Since Democrats want to move to a single-payer system, as Obamacare flounders (partly because it wasn’t designed to treat Americans but to treat Mexicans), Charlie’s case will no doubt have been studied closely across the pond. President Trump, of course, nobly intervened on little Charlie’s behalf and rightly so.
Charlie’s case highlights the technological backwardness of the NHS and the dangers of health rationing. The NHS can no longer treat our children, just condemn them to die. It failed poor Charlie Gard and must now accept the political implications. I think the NHS is finished. It has outlasted Charlie, but not for long, I suspect.
I have nothing personal against the NHS. It saved my life, thanks to its policy of handing over confidential medical records to German Intelligence and its failure to diagnose my reflux disease. When Jerry decided to use poison to assassinate me in 1999, he was no more aware than the NHS that any poison administered during a heavy meal would probably be counteracted by stomach acid in my esophagus. (I was left with a very sore esophagus and to this day court ushers who know me always put out an extra carafe of water!)
The political implications for the Supreme Court and the ECHR
I think the Supreme Court is finished as well. The idea of calling it the Supreme Court, when it isn’t the highest court in the land, was always silly, as I advised the House of Lords when the idea was considered. (Britain’s highest court of course remains the High Court of Parliament.)
The Supreme Court has already called its future into question with its notorious Brexit ruling, where the reasoning of the majority with respect lacked intellectual rigor.
Its status has been further reduced, with respect, by the disappointing appointment of Lady Hale as its new President. Her Ladyship is a poor lawyer, with respect, so much so that she apparently thinks that Parliament can bind its successors and that the, with respect spurious, Factortame decisions were correct.
No British court can expect to command respect if its judges have persuaded themselves that Parliament can bind its successors. Courts have to be careful before handing down junk law, however politically convenient. Every judge knows that hard cases make bad law – you should never distort the law to reach the result you want. I’m a Brexiteer (no shit Sherlock!), but many years ago, when Tim Eicke QC, now the British judge on the ECHR, applied to me to refer a case to the European Court of Justice, I granted his application without hesitation. (Apparently the Home Office thought that as a Eurosceptic I would never refer – idiots!).
The ECHR is also finished, at any rate as far as Britain is concerned. In practice the European Convention on Human Rights is a terrorists’ and murderers’ charter. Charlie’s problem was that he was an innocent little baby. His human right to life didn’t seem to count for much in Strasbourg.
The controversial Children Act needs to be repealed, most conveniently in the same statute which abolishes the failed Cafcass. The powers of the court in this type of situation should be confined by statute to wardship proceedings.
I am not a medical man. My experience of brain death is confined to dealing with Liberal Democrats and Cabinet Ministers, no offense intended, but my own brain is not yet dead.
With great respect I am startled by the paucity of the reasoning of the judges in this case and unimpressed by the performance of the NHS. I knew which way the courts and NHS were headed, but Charlie Gard’s case has been a searing experience for many.
One thing’s for sure. From now on, when liberal lawyers debating capital punishment claim that the state has no right to take human life, we conservative lawyers are going to laugh in their faces.
Finally, I wish to express my deepest condolences to Charlie’s deeply loving parents. They have set an example to every other parent in the land. No parent could have done more for their sick child than Chris Gard or Connie Yates. No blame whatsoever attaches to them for Charlie’s illness – it was a cruel twist of fate they each had a defective gene, which they themselves had inherited. Inheritance, good or bad, is part of the human condition. We pass on to our children the genetic hand that we ourselves have been dealt.
Intelligence analysis is an ongoing process. Sometimes, as with the case of Amelia Earhart, you are proved right. Sometimes new facts come to light.
Online research suggested to me that the IJN Koshu had been built in 1937. In fact her name had been changed and she was built in 1911 by the Kawasaki Dockyard Co. in Kobe. She was previously known as the Tauin Maru No 3, and before that the Tauin Maru. I am most grateful to Lloyd’s Register, who were kind enough to look out the relevant 1938 entry for me.
My overall analysis hasn’t changed however: the History Channel/ONI photograph of Amelia Earhart and Fred Noonan is real and was taken in 1937. The sons of Old Nihon are lying. Given the brutality of the Kempetai’s conduct in Saipan re these courageous American flyers I don’t blame them. It was so bad that it seems to have been the reason why hundreds of Japs threw themselves off a cliff in Saipan once word got round that the Americans had found the bodies.
This Week’s TV Review: Against The Law (BBC, airdate July 26th)
I really hope that PBS pick this docudrama up. It’s very well made – it’s the story of the persecution of Lord Montagu of Beaulieu, Peter Wildeblood and Michael Pitt-Rivers over their sexuality.
This was the trial which led to the Wolfenden Committee and the ultimate legalisation of adult gay sex in Britain (Queen Victoria had intervened on behalf of lesbians and rightly so – adult lesbian sex was never against the law). The arrests were political, the 1954 trial at Winchester Assizes, a farce and the 12 month sentences for consensual sex with an adult savage, with respect, in the tradition of Judge Jeffreys and the Bloody Assizes. Arguably, the main differences were that the defendants in the Bloody Assizes were actually guilty of a real offense and that Judge Jeffreys with respect was rather a better lawyer than Mr Justice Ormerod, no offense intended.
The program fails to point out that the instigator of this nonsense, Sir David Maxwell-Fyfe QC, then Home Secretary, was being blackmailed by GO2, most probably over his own sexuality. He was probably the silliest Home Secretary in history, outdoing even Amber Rudd, no offense intended.
The program brilliantly satirises the law. The case serves as a stark reminder that the law can sometimes be an ass and that judges can sometimes be arses, no offense to any of my former brethren intended.
Michael Shrimpton was a barrister from his call to the Bar in London in 1983 until being disbarred in 2019 over a fraudulently obtained conviction. He is a specialist in National Security and Constitutional Law, Strategic Intelligence and Counter-terrorism. He is a former Adjunct Professor of Intelligence Studies at the American Military University.