This is a guest post by Harriet Humberstone, a law student who begins her Bar professional course this September. Harriet has a particular interest in representing children in both private and public law
This is my account of a family court hearing I attended as a ‘legal blogger’ for The Transparency Project. As a law student I have a distinct perspective on the inner workings of a courtroom. I felt a combination of excitement, respect, and naivety: excitement to observe and learn, respect for all those involved, and naivety as to the realities faced by the parties. The hearing I attended before Mr Justice Poole in the High Court at the Royal Courts of Justice encapsulated all three. I want to share my perspective on the day’s events while acknowledging that some of that naivety may remain.
When I entered the courtroom, I was unaware of the precise issues to be discussed. I knew that the case concerned a child and could see a doctor waiting on the video link. A woman sat with what appeared to be the weight of the world on her shoulders; I later learned that she was the child’s mother. The child was referred to in the present tense, yet the subject of the hearing was his likely death as a result of a serious incurable illness. The subject matter of this hearing was very different to all other family proceedings I have observed. Yet, at its core, the case remained familiar: it concerned a mother, her child, and the court’s assessment of the child’s welfare. I will refer to the child as Zack.
Zack is 15 years old and has been diagnosed with a terminal illness. His prognosis indicates that he will not live for much longer. He has been living with a foster family for approximately ten years under a care order, which means that the local authority held overriding parental responsibility for him, albeit that they still had a duty to consult the parents before major decisions. His mother argued that there had been significant failures in communication between the various agencies involved (the local authority and NHS Trust), arguing that this had exacerbated an already distressing situation both emotionally and financially.
Her counsel provided a skeleton argument, which I summarise briefly. While acknowledging that Zack was in the care of the local authority, the mother’s barrister emphasised that she shared parental responsibility and should be involved in key decisions. The issue in dispute related to his palliative care and a DNACPR (Do Not Attempt Cardiopulmonary Resuscitation) order. The presiding judge quickly clarified that palliative care fell within the remit of medical professionals; the court would address only the DNACPR.
The parties’ submissions revealed a dispute centred largely on process, particularly in relation to Zack’s Advance Care Plan (ACP). The NHS defines ACP as a process through which individuals discuss and document their future care preferences to ensure their wishes are known if they cannot communicate them, particularly in end-of-life contexts. Zack’s ACP included a decision not to attempt resuscitation, as advised by his medical team.
The mother’s counsel had argued in writing that the ACP had been finalised ten days before she was given access to it. The local authority disputed this, suggesting the delay was shorter. The Trust accepted that the mother should have been consulted. Even a delay of a few days raises concern in a decision of this magnitude. Around the same time, the mother reported being locked out of the MyChart system, which had previously allowed her to track Zack’s condition and communicate with professionals. The Trust indicated that this was a decision made by the local authority.
Zack’s mother’s legal team argued that her consent, alongside that of the local authority, was required for the DNACPR. A request was subsequently made to suspend the order.
The medical evidence presented to the court emphasised that CPR would not merely be ineffective but would cause severe and irreversible harm to Zack. In seeking a second opinion, the mother had asked whether a more nuanced ACP could be created. The consultant responded that this would be possible but would require real-time discussion with the family.
Of particular concern was the fact that the ACP form indicated that those with parental responsibility had been fully involved in the decision-making process.
Relevant case law underscores the importance of parental involvement and when the court may become involved:
- Re C (Children) [2016] EWCA Civ 374 confirms that all those with parental responsibility must have the opportunity to express their views.
- H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 recognises that certain decisions are of such magnitude that a local authority should not override parental views under s.33(3)(b).
- Re SE (A Child) [2014] EWHC 3182 (Fam) establishes that where there is parental opposition or uncertainty, the matter should be brought before the court.
In the courtroom, the judge was told that with the help of the lawyers the wording of the DNACPR has been agreed, but an issue remained about its format- should it be on the standard DNACPR form, which would be recognisable to hospital staff and emergency medical crew, or could it be in a format that the mother preferred. The Trust’s submissions focused on the certainty of harm that CPR would cause. This was not a question of risk, but inevitability. As I was sitting behind Zack’s mother in order to see the video link screen, I could not see her face, but the emotional weight of the moment was palpable.
One of the reasons I am drawn to family law is its attempt to impose structure on profoundly complex human situations. These cases resist clear-cut answers, yet the court must reach one. Here, the judge acknowledged the mother’s strength and the difficulty of her position. However, he declined to order an alternative format of the DNACPR. He accepted the Trust’s argument that, in an emergency, medical professionals might be hindered by an irregular or overly nuanced document. It was therefore not in Zack’s best interests.
The hearing concluded with the judge expressing that Zack was in his thoughts. He is in mine too.
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