As is now well-known, Charlie Gard’s case reached the end of its legal road last week, when the European Court of Human Rights decided that his case, and the case brought on his behalf by his parents, was inadmissible. At the same time, it decided that the interim measures put in place (a request to the United Kingdom to take appropriate steps to preserve Charlie’s life with dignity, a request that the Supreme Court had agreed to) no longer needed to continue.

 

Charlie’s parents brought their case on their own behalf, and on behalf of Charlie. Their arguments spanned four human rights in particular. They raised arguments that there was an infringement of Charlie’s right to life (Article 2), on the basis that this right gave rise to a duty on behalf of the State to preserve life. They argued that the interference with their own parenting decisions was an unjustified intrusion into their private life (Article 8). And they raised arguments about deprivation of liberty (Article 5), and fair trial (Article 6). The last two were always rather weak; the European Court decides for itself how the human rights issues are best framed (or as it puts it “it is the master of the characterisation to be given in law to the facts of a case”, paragraph 104). It didn’t grapple with Articles 5 and 6, and neither will I (this is a bit like saying, “we’ll consider your best arguments; if they don’t help then your worst ones won’t”).

 

It is important to understand that the European Court of Human Rights is not an appeal court considering appeals from our Supreme Court. So this has some practical consequences for what happened last week:

 

1. The parties to the case changed. No longer was this a dispute between Great Ormond Street Hospital and the family. It became a dispute between the family and the United Kingdom. Cases brought before the European Court of Human Rights are always brought against the country whose rules, laws, systems or decisions are said to have breached someone’s human rights.

 

1. The way that the law is applied changed. In this country, the Courts had to consider and apply the legal system of this country. Before the European Court of Human Rights, it became possible to argue about whether the legislation, common law, and case law that had been applied had provided an effective remedy or not.

 

1. Following on from this, there is a principle that the European Court applies called the “margin of appreciation”. This is the language it uses for the idea that, in many areas, the Court will not tell countries exactly how to give effect to human rights, and will respect differences in emphasis or process between different countries, so long as they are trying to uphold the main principles. The “margin of appreciation” is mentioned several times in last week’s decision, to explain why that Court decided not to interfere.

 

1. The way that judgments are written changed. While judges in this country have a broad discretion to frame and structure their judgments in whatever way they think best, and in particular to provide reasons for how they have decided between competing arguments so as to set precedents for future cases, European Courts judgments are much more rigidly structured, with much less flexibility. This judgment adopts the standard structure of all European Court judgments.

 

1. The European Court draws on different tools to interpret and apply human rights principles. Although this is perfectly standard practice for the European Court, it is particularly noteworthy that in Charlie Gard’s case, the European Court considered and applied these four international human rights agreements:

 

• The European Convention on Human Rights;
• the UN Convention on the Rights of the Child;
• the European Union’s Charter of Fundamental Rights, “which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009” (paragraph 54);
• the Oviedo Convention – full title ‘Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine‘.

 

What is particularly interesting to reflect upon is that while the first of these is given legal effect in the United Kingdom by the Human Rights Act, and the second is widely respected and used by judges as a useful tool to understand human rights as they apply to children, the third and fourth are highly controversial. The United Kingdom tried to opt out of the EU Charter of Fundamental Rights when signing up to the Lisbon Treaty. A judge in this country has ruled that it has in fact done so. The European Court of Justice thinks otherwise. As for the Oviedo Convention, the United Kingdom chose not to sign up to it in the first place. It has never signed or ratified it, and in domestic law is in no way bound by it. But the fact that the United Kingdom has opted out of, or failed to sign up to international human rights agreements does not prevent the European Court from considering and using them.

 

Back to Charlie’s case. I’ll focus on the three issues that particularly exercised the European Court (these are issues I, III, and V as considered by the European Court itself).

 

Issue 1 – Do Charlie’s Parents Have a Right to Complain on Charlie’s Behalf?

 

As indicated, Charlie’s parents brought the case both on their own behalf and on his behalf. One question the European Court had to grapple with decide was whether his parents should be allowed to bring a case on his behalf. The idea of a parent bringing a case on behalf of their child might be thought uncontroversial, and the idea of refusing a parent the right to bring a case on behalf of their child might be thought controversial, but ultimately the European Court’s judgment comes within a whisker of concluding that they may not have this right.

 

A number of the Courts principles had to be considered in arriving at this decision. The starting point is that people bring cases on their own behalf. There are exceptions, but they are limited. In this instance, Charlie’s interests had been represented by an independent guardian at all stages of the court proceedings in this country, so there was someone else in a position to bring a case on his behalf. And his parents were effectively considered less independent than his independent guardian.

 

However, the Court noted that it was going to be considering the issues by considering the case the parents brought on their own behalf, so they decided it was not necessary to reach a final conclusion on whether the parents could act for Charlie.

 

Issue 2 – Charlie’s Right to Life

 

The European Court notes that the human right to life (Article 2) encompasses also a duty upon the State to protect life. However, it notes that this does not lead inevitably to a conclusion that all life must be preserved for as long as possible. It draws out two particular threads from the previous caselaw of the European Court, and applies them to Charlie’s case. They are, its case law on experimental medical treatment, and its caselaw on the withdrawal of life-preserving treatment.

 

On experimental medical treatment, the European Court has previously accepted that it is right that States can regulate access to experimental treatments. However, since such regulation might prevent access to experimental treatments, resulting in death, there has to be in place a framework for considering individual cases. The European Court noted that the UK has such a framework in place, that it has endorsed that framework as being human-rights-compliant previously, and that it was applied in Charlie’s case.

 

On the withdrawal of life-preserving treatment, I noted in one of my previous posts that the European Court has gone further than the UK Courts in recognising the idea of a right to “die with dignity”. Specifically, my earlier post referenced the case of Lambert and Others v. France (application no. 46043/14), pointing out not only that it watered down the previously established position (in Pretty v United Kingdom – 2346/02 [2002] ECHR 427 (29 April 2002)) that the right to life does not encompass a right to choose to die) but also that the framework it created was controversial and heavily contested.

 

Unsurprisingly, however, the European Court in Charlie’s case applied its own judgment in Lambert as the framework for evaluating withdrawal of treatment to Charlie. Indeed, it described its judgment in Lambert as a “landmark” case (paragraph 79) – correctly, given that it marked a significant move by the European Court away from “sanctity of life”.

 

Applying the Lambert principles, the Court noted that its requirements in respect of life-preserving treatment were, first, a regulatory framework; second, the taking into account of all relevant express wishes and opinions; and third, access to a court to resolve disputes.

 

In Charlie’s case, the European Court found all three of these were satisfied, and therefore there was no breach of Charlie’s right to life, as understood post-Lambert. There are some ironies to note here: first, of the three issues the European Court grappled with, that I unpack in this post, the conclusion that Charlie’s right to life has not been breached is the only one that is clearly reasoned and concluded. The European Court leaves open the possibility of further arguments on both of the others two issues. Second, it is ironic to reflect that on the current state of caselaw, “sanctity of life” arguments have a greater foothold in UK law than in European law; and that the Court’s ruling in Charlie’s case has effectively reinforced that we are now in a post-Lambert world so far as the European Court is concerned.

 

Issue 3: What Is the Threshold for State Intervention?

 

Readers of my previous posts will be aware that this was the particular issue where I departed from the Supreme Court refusal-of-permission decision. Of course, the European Court does not address this question as an issue in itself. Rather, it is found within a more detailed consideration of the Right to Respect for Private and Family Life (Article 8).

 

It’s worth noting that the phrase “significant harm” is to be found in the Children Act 1989. In other words, it’s a threshold embedded in domestic legislation, rather than a threshold imposed by the European Convention on Human Rights. Thus, the question for the European Court would be whether the domestic law is consistent with its own principles.

 

The well-established principles of the Court are that interference with private life needs to be, firstly, in accordance with the law; secondly, in pursuit of a legitimate aim; and thirdly, necessary in a democratic Society.

 

The Court found it easy to conclude that the first two were met, perceiving the controversy to be in the third. For my part, I am surprised by this. I would have thought it was dubious as to whether the interference was “in accordance with the law”. This is for two reasons. One is that (as Lady Hale meticulously explains at paragraph 79 onwards of this case)

 

In order to be “in accordance with the law” under article 8(2), the measure must not only have some basis in domestic law… but also be accessible to the person concerned and foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements. First, a rule must be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct… Secondly, it must be sufficiently precise to give legal protection against arbitrariness…

 

My other concern is that it is not even clear that the Children Act is being correctly applied, where it applies private law principles to a public law disputes such as this.

 

Even so, was the interference necessary? It is under this heading that the European Court considered the “significant harm” or “best interests” dispute. And the European Court once again fell short of reaching a clear conclusion. Which means, it once again left the issue open for argument in another case, another day. The court specifically noted that there is no previous caselaw to answer this question (paragraphs 107, 118).

 

So why did it not decide this very question in this very case? Ultimately, the answer goes back to the “margin of appreciation”. And it is worth pausing to reflect, for a moment, that whatever tabloids might lead people to believe, the United Kingdom has an excellent record of compliance with human rights standards, and the European Court rarely finds against it. It is countries such as Russia, Ukraine and Turkey, not the United Kingdom, that are routinely at the wrong end of European Court rulings. (Of course, these countries are not in the European Union; but then, the European Court of Human Rights is not a European Union Court). There is a political judgment below the surface here: too much micro-management of the decision-making of largely compliant countries, especially one such as the United Kingdom that is politically critical of the Court, detracts from addressing more blatant disregard for human rights standards elsewhere.

 

At the heart of its decision not to rule on this last question is this:

 

The Court reiterates that the question of whether an interference is “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures are “relevant and sufficient”. In considering the reasons adduced to justify the measures, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. In the present case, the Court accords the benefit of that direct contact even greater weight given the contact that the domestic courts have had with all those concerned and the extensive amount of technical expertise they have examined. (paragraph 121)

 

To put it at another way, the European Court felt it appropriate to give the United Kingdom the benefit of the doubt, given that it was conscientiously trying…

 

Those who have read my earlier posts will recall that the first was provocatively titled ‘The Supreme Court Is Wrong on Charlie Gard and Withdrawal of Treatment’. So, what about the European Court of Human Rights? I hope this explainer shows how and why Charlie’s prospects were always slimmer before the European Court. The latter is applying international law in a politicised context, whereas the important debate in the case was always about the proper application of domestic legislation and caselaw. That is why it is our own Supreme Court that should have grappled with it.

Feature pic of ECHR by CherryX via Wikipedia (Creative commons licence – thanks!)