Bereaved families expect outcome of challenge over secrecy of life and death proceedings in Family Division of High Court
29 March 2023 Issued by: Christian ConcernThis Friday, two grieving families who have challenged the secrecy of life and death proceedings in the Family Division of the High Court, expect judgment in their case.
The challenge concerns the limits of the power of the courts to impose reporting restrictions which prohibit, in the context of legal proceedings, the naming of witnesses as well as the identification of non-parties indirectly connected to legal proceedings.
The conjoined appeal took place at the Court of Appeal in November 2022 and was heard before The Lord Chief Justice, The Lord Burnett of Maldon.
Parents Rashid and Aliya Abbasi and Lanre Haastrup, who are being supported by the Christian Legal Centre, were the subject of best interests proceedings brought by hospital trusts who wished to withdraw, against the parents’ wishes, life-sustaining treatment from their children.
The Abbasis have described the ‘toxic environment’ surrounding the medical care of their six-year-old daughter, Zainab, which culminated in the shocking arrest of Rashid in an intensive care unit which was captured on police body cam footage.
In the case of one-year-old son, Isaiah Haastrup, the Trust concerned has admitted liability for the fatal injuries caused to the infant, Isaiah Haastrup, and has paid damages to the parents.
At the hearing in November, the families challenged Newcastle Upon Tyne Hospital NHS Foundation Trust and King’s College Hospital NHS Foundation Trust, respectively.
In both cases the hospital trusts concerned obtained extremely broad, world-wide reporting restrictions. These restrictions have prevented the press from exploring the serious concerns that both sets of parents raised about the processes surrounding the treatment of those children.
The gagging orders have prevented both sets of parents from telling the full stories of what happened to them, and from revealing the decisions made surrounding the end-of-life care of their seriously ill children.
Reporting restrictions in such cases are now routinely made to last indefinitely. Other recent cases where similar controversial restrictions were made include the cases of Charlie Gard and Alfie Evans.
In June 2021, when the families originally brought the case challenging the restrictions, the President of the Family Division, Sir Andrew McFarlane, held that identities of all clinicians involved in end-of-life cases should remain secret forever, long after the case is over and the child is dead.
The rationale put forward was to keep secret the identity of clinicians involved in case of any public backlash. Their rights to privacy under Article 8 of the European Convention on Human Rights was held to prevail over the parents’ and the press’ free-speech rights under Article 10.
This ruling represented a change of the law compared to the system established by his predecessor Sir James Munby, who repeatedly stressed the importance of open justice in family courts, and in particular, that only individuals (but not classes of people) can be anonymised if there are special reasons for doing so.
The families appealed this ruling in May 2022 and won the right to appeal with lawyers for the parents arguing that the High Court had erred in law, that restrictions are no longer justified and their continuation breaches Article 10 of the European Court of Human Rights (ECHR).
In giving permission to appeal in May 2022, the Rt. Hon. Sir Geoffrey Vos, ruled that: “At the very least there is a good reason for the Court of Appeal now to consider the legal position affected given the appropriateness of a general order allowing all treating staff of a particular NHS Trust anonymity in these circumstances…it is time for the Court of Appeal to consider the questions raised by these two very sad cases…in the current context including the new approach to transparency in the Family Division. For these reasons I will allow permission to appeal on all grounds.”
Ahead of the appeal being heard in November 2022, the Abbasi family, said: “We hope a successful appeal will allow us the freedom to discuss our legitimate views about the care of our daughter.
“This is in the wider interests of all patients and in particular children with special needs which have been overlooked.
“This is a small step in achieving greater gains and advocating for all patients in general, but particularly children like Zainab whose care and rights are often ignored by those who should care for them.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “The whole system needs a major overhaul. These tragic cases occur in a shroud of secrecy. Nothing breaks through because of the way in which the law operates to prevent close and open inspection and accountability of all parties involved.
“Parents are expected to navigate a complicated system weighted against them often without anyone to help them and at a time of great personal distress. This has to change. I’m pleased that parliament has opened a review into the situation.
“Sadly, there have been other similar cases, from Alfie Evans to Archie Battersbee, where deeply disturbing decisions have been made by treating clinicians, police and the courts. The family, in their grief, have the whole legal machinery tumble down on them and no one advocating for them during the most harrowing life experience anyone could imagine.
“When our society and frontline services unilaterally decide that death is in a child’s ‘best interest’ and the parents are left powerless in the face of the ‘system’, it is vital that those with the power to make such a decision are held to account in the light and not behind closed doors.
“We hope and pray for justice this week.”
