Tomorrow, in a crucial case for open justice, two families will challenge the secrecy of life and death proceedings in the Family Division of the High Court.
Supported by the Christian Legal Centre, parents Rashid and Aliya Abbasi and Lanre Haastrup, will seek permission to appeal a High Court ruling which said that identities of clinicians involved in end-of-life cases should remain secret forever.
Gagging orders have prevented both sets of parents from naming clinicians who presided over the end-of-life care of their seriously ill children.
The parents have grievances against doctors who were determined to bring their child’s life to an end. They have never been able to tell the full story of what happened to them due to reporting restrictions.
At the Court of Appeal, this week they will challenge these restrictions on the grounds that important life-and-death decisions by doctors should be subject to public scrutiny within the medical profession and beyond.
The Court will consider the two cases together because they involve the same issue of principle of open justice versus protecting clinical staff.
Lawyers for the parents will argue that the previous High Court ruling erred in law, that restrictions are no longer justified and that their continuation breaches Article 10 of the European Court of Human Rights (ECHR).
In the case of the Abbasis, hospital staff caring for their dying six-year-old daughter, Zainab, in intensive care, called the police to have the father brutally removed from her bedside in shocking police body cam footage.
The Abbasi family say that there was a ‘toxic environment’ surrounding the medical care of their daughter which must be exposed. Their legal case against the police is ongoing.
In 2018, life-support for the Haastrup’s one-year-old son, Isaiah, was removed against the wishes of the parents. Mr Justice Macdonald, in the High Court, agreed with the clinicians that while Isaiah could potentially survive for many years, continuation of life support was not in his best interests. Isaiah was expected to die immediately after the removal of artificial ventilation, but in fact died several hours later.
Ground-breaking judgment
The hearing follows a ground-breaking judgment in June 2021, where 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 was to protect clinicians from potential harassment from disgruntled parents and pro-life groups. This is despite there being no evidence of any actual harassment of any clinicians involved in either the Abbasi or the Haastrup case.
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.
Open justice is at stake
Andrea Williams, chief executive of the Christian Legal Centre, said: “The fundamental principle of open justice is at stake in these cases.
“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. Parents are expected to navigate a complicated system weighted against them. This has to change.
“Sadly there have been other similar cases, from Alfie Evans to Charlie Gard, 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 has to be exposed.”