Ministry responds to criticism from Charlie Gard judge

Charlie Gard’s parents did not apply for legal aid the Ministry of Justice claimed in response to the judge’s criticism that cuts left the family without public funding. Catherine Baksi reports

After Connie Yates and Chris Gard dropped their application to take their terminally ill son for treatment in America, the judge hearing the case, Mr Justice Francis, said the pair should have been granted legal aid.

He paid tribute to the lawyers who had represented them without charge, but said: ‘When Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority.’

He said: ‘I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life-support machine should be switched off in respect of a child.’

The judge added: ‘I am aware that there are many parents around the country in similar positions where their cases have been less public and where they have had to struggle to represent themselves. I cannot imagine that anyone ever intended parents to be in this position.’

A Ministry of Justice spokesperson told Legal Voice: ‘Legal aid is available for High Court cases concerning children and the most vulnerable, subject to tests concerning the merits of the case and the applicants’ financial means.’

But they said that no application for legal aid had been made in Charlie Gard’s case. Legal Voice contacted the parents’ present solicitors, Harris Da Silva Solicitors, and their former firm, Bindmans, to confirm this, but neither replied.

Lawyers suggested it is likely that the parents would have been caught by the means test for public funding, which means anyone with savings or capital of over £8,000 or a disposable income of more than £733 a month is ineligible for legal aid – and which may explain why no application was made.

Bob Neill MP, chairman of the Common’s justice committee, said it was difficult to see logically why legal aid was not available. He said: ‘I am sure that Parliament didn’t envisage a situation where people couldn’t get it in life or death situations.’

Expressing the hope that the committee would want to consider the issue when it revisits legal aid issues, Neill said: ‘I’m with the judge on this one. I hope the government looks at it again.’

‘Putting the situation right’, he suggested, would not require primary legislation, adding: ‘It would be an easy win for the government to do the right thing – it’d have public and cross-party support.’

Richard Burgon MP, Labour’s shadow justice minister, said the judge’s interpretation of Parliament’s intentions when it enacted the Legal Aid Sentencing and Punishment of Offenders Act 2012, which removed whole swathes of eligibility for legal aid, was ‘charitable’.

He said the financial eligibility test for legal aid is ‘too low’. ‘There are a lot of people who don’t get a look in,’ he said; and suggested there ought to be a cure in ‘exceptional circumstances’ like this to ensure people are not barred from accessing legal aid.

Burgon added that it was ‘disturbing’ that the government’s review of LASPO had yet to transpire.

In a statement, the Young Legal Aid Lawyers group said the government is not meeting its duty to provide access to justice and urged it to review the financial means tests for legal aid as part of its review of LASPO.

The group also called on the government to consider whether legal aid for families in cases concerning withdrawal of life-sustaining treatment, such as that of Charlie Gard, should be non-means tested.

It added: ‘The government must ensure legal aid is not reserved only for the very poorest and most vulnerable in society, but rather is available to anyone who is unable to pay for legal advice and representation.’

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