STOP PRESS: This evening’s ECHR press release is also here with the interim judgment of the Supreme Court of today here too)

I have previously expressed my view that the Supreme Court was wrong to refuse permission to appeal in Charlie Gard’s case. Hopefully, it should be sufficiently clear from my earlier piece that my concern was that Charlie’s parents had advanced important points about the threshold for the State to intervene in their decision-making, which I felt and still feel were correct, but were not the basis on which the case was decided. That is not to say that the outcome was wrong, but rather that we don’t know the right outcome would have been, until we apply the right test. That’s important to bear in mind given subsequent developments.

The state of play before the European Court of Human Rights, is that it has asked for appropriate steps to be taken to preserve Charlie’s life at least until midnight tonight. It is worth reporting the rationale for that decision, since it is being reported today that there has also been a further hearing in front of the Supreme Court, which is to issue a further decision either today or tomorrow.

So, the European Court of Human Rights has said,

“Charlie Gard’s parents filed a request for an urgent interim measure (under Rule 39 of the Rules of Court) with the European Court. The applicants have not at this stage submitted a full, substantive application – the request was for an interim measure only. On Friday 9 June the Court initially granted the interim measure in the application Gard and Others v. the UK (no. 39793/17) in order to allow the European Court to examine the request in a Chamber formation of seven judges (see link to press release).

The Chamber has now given detailed consideration to the Rule 39 request and considers that serious and irreparable harm may occur if it lifts its Rule 39 indication before the Court can examine any application which may be submitted in this case.

At this stage in the procedure, the Court cannot prejudice any decision that it may ultimately make on the substance of the case. Therefore, in the interests of the parties and the proper conduct of the proceedings before it, it has indicated to the Government to prolong the application of the interim measure of 9 June 2017 until its decision on any substantive application that may be submitted. In the event that no substantive application is submitted, the interim measure shall be maintained until midnight on Monday 19 June 2017.”

Here, I will reflect on three questions:

• Why is the Supreme Court considering the matter again so soon?
• What is being reported about the arguments that are being advanced?
• What should the Supreme Court do?

I was initially surprised at a further hearing before the Supreme Court, given the deadline of midnight tonight. However, on a more careful reading (see above), the interim measure expires at midnight only if no substantive application has been submitted; which means that simply by submitting a substantive (full) application, Charlie’s parents will have been able to extend the interim measures until the Court’s decision on the substantive application.

It appears it is the prospect of such a further extension that has prompted a further hearing in the Supreme Court. The Times is reporting here that

Last week the European Court of Human Rights asked UK doctors to continue life-preserving treatment for Charlie Gard until midnight tonight while it considered the case.

However, lawyers for the government and Great Ormond Street Hospital in London, where ten-month-old Charlie is being treated, have suggested that such a request is not binding. Any such delay, they argue, needs the authority of the UK courts.

It is an interesting – and surprising – argument. It can be seen above that the European Court of Human Rights “has indicated to the Government to prolong the application of the interim measure”. The language of “indicated” rather than “ordered” does indeed reflect that the request may not be binding. However, it is still surprising to see the argument being advanced.

Firstly, Courts frequently rely upon sensible agreements being arrived at between the parties to a dispute about what should happen pending the resolution of the dispute. If the matter is being brought back to the Court, it suggests that they are not even able to agree on continuing Charlie’s treatment temporarily in the intervening period.

Secondly, the issues that are relevant to what should happen on an interim basis are very different from the issues that would need to be considered at the substantive hearing. One issue is about whether there is a need to make an order to preserve the status quo so that the proceedings still have meaning. Examples might include an order to preserve documents pending a decision on whether documents can be destroyed; an order to preserve privacy pending a decision upon whether a privacy injunction is granted; or an order that keeps a person in the country pending a decision on whether they should be deported. It is worth noting that the Supreme Court has ruled within the last week that permitting an appeal against deportation only from abroad represents a breach of human rights – see this case: R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42.

The European Court was plainly alive to this issue, when it noted that “irreparable harm may occur if it lifts its Rule 39 indication before the Court can examine any application…” – in legal language, the European Court is noting that it’s a bit late to be considering whether Charlie should be kept alive, if his life has already ended. For my part, I would have thought that logic was so straightforward and unanswerable that there is no serious prospect of the Supreme Court doing anything other than giving the authority to keep Charlie alive.

Thirdly, though, the language if correctly reported is surprising: “such a request is not binding“. One can see why this is surprising if we instead ask a different question: “would Great Ormond Street Hospital be allowed to continue treating Charlie in the absence of a further Order?” It is plainly what his parents want, and so far as we know they retain parental responsibility, and Charlie has not been made a Ward of Court. It is also plainly what the European Court of Human Rights expects.

The source of objection to continuing to treat Charlie is neither his parents nor the European Court. It would seem to be Great Ormond Street Hospital. But hospitals do not generally need the Court’s sanction to continue treatment that is requested and ethically permissible. One might surmise, therefore that the Hospital continues to promote the withdrawal of treatment, even during an interim period.

Now, I would suggest that the threshold required to withdraw life-preserving treatment on an interim basis pending the European Court’s substantive decision is extraordinarily high. Perhaps, if Great Ormond Street Hospital could show that the continuation of treatment even on an interim basis caused such suffering and harm to Charlie as to constitute inhuman or degrading treatment, that would suffice. After all, Charlie has an absolute right under Article 3 not to be subjected to such treatment; and the State, including Great Ormond Street Hospital, has a corresponding duty to protect him from it.

That, however, brings us full-circle: this, say Charlie’s parents, is what should have been considered at a full hearing before the Supreme Court (they were explicitly arguing that the proper threshold was significant harm, not best interests). The Supreme Court should not be considering this at a brief hearing about continuation of interim measures. If that threshold could be made out, it should have been; if it cannot, the withdrawal of treatment may not be warranted at all.

If the UK Government is indulging its pastime of arguing that the UK courts are sovereign and European Courts shouldn’t interfere, it’s an extraordinarily badly timed intervention, and not one to excite a groundswell of public opinion against the European Court. But I would confidently predict that the Supreme Court will have none of it, and will take the steps that are necessary to make any European Court ruling meaningful.

Allan Norman (@CelticKnotTweet) is an independent social worker at Celtic Knot. Between 2006-13 Celtic Knot was also his law firm.