I first blogged about Fake Law in November[i] and said that this was an extremely important book which shows how the powerful and the ignorant corrupt justice without our knowledge.[ii] The Secret Barrister debunks the lies and reveals the stupidity, malice and incompetence behind some of the biggest legal stories of recent years. Sadly, some of the worst of these have been in the very difficult area of family law, particularly as it relates to what should happen when a child is seriously ill, close to the point of death, and its parents understandably out of their love try everything they can to save their child. In England the law that covers this question has developed slowly but steadily over many years. The jurisdiction of the courts to intervene in matters relating to the welfare of children was developed by the courts during the late 18^th and 19^th centuries. Prior to that the father was the legal guardian of his legitimate children, with a mother exercising parental rights of a child born outside marriage. If a child was orphaned or otherwise parentless, the courts had powers of wardship to take the child under the guardianship of the court but had no meaningful role to play in the treatment of a child by her parents, unless and until the criminal law was breached.

At the end of the 18^th century the Court of Chancery developed a new way of considering this issue as there was a growing societal awareness that children had their own rights, distinct from the wishes and whims of the father. They needed to be protected by the criminal law from abuse and injury and it was in the wider interests of society that children would be educated, properly cared for and helped to become healthy and useful members of society. I don’t have time or space to cover all the developments but gradually the idea developed that the welfare of the child was not just a consideration, but the consideration for courts dealing with cases involving children and that is what underpins our legal system today, expressed in section 1 of the Children Act 1989: when a court determines any question relating to the upbringing of a child, child welfare should be the court’s paramount consideration.

The notion of welfare is often expressed as ‘best interests,’ which is in fact the language used in article 3 of the United Nations Convention on the Rights of the Child. In legal systems across the world, the absolute rights of the father have given way to the individual rights of the child. In most cases it would be hoped that the courts would not have to get involved in such matters but from time-to-time cases become so complicated and indeed tense that the courts must have a role and when they do it will be the child’s interests that they put first whatever the emotional implications of that might mean for the parents.

In this chapter the Secret Barrister goes into considerable detail about two cases involving two little boys who had the most terrible start in life and whose lives were almost not worth living. One suffered from a rare inherited disease called infantile onset encephalomyopathic mitochondrial DNA depletion syndrome, referred to as MDDS. He was admitted to Great Ormond Street Hospital at the age of two months and shortly afterwards began to suffer from seizures, and a series of tests subsequently confirmed the tragic diagnosis. Progressive respiratory failure meant he was dependent on a ventilator to keep him alive. He could not move his limbs nor open his eyes to see. There were no usual signs of normal brain activities such as responsiveness, interaction or crying. He was deaf and was affected by frequent seizures. The clinical consensus was that the quality-of-life was so poor and the condition so devastating that he would derive no benefit from continued life. Accordingly, the hospital applied for a court order declaring that it was lawful for artificial ventilation to be withdrawn and substituted for palliative care which would lead to his death.

His parents traced a doctor in the United States who talked about a pioneering treatment known as nucleoside therapy that was available subject to fundraising. His desperate parents through social media and crowdfunding raised £1.2 million to pay for this to take place in America. This came before the High Court where the judge refused to allow the pioneering treatment to take place. A series of appeals ensued going all the way through the Court of Appeal, the Supreme Court and even the European Court of Human Rights, all of whom confirmed the original High Court decision. This then came to the attention of the pro-life brigade in the US who failed to understand that courts in England and Wales are independent of the government and that there was no government involvement in any of these decisions. Their system is such that the courts are entwined with the government despite their thinking that the constitution talked about separation of powers. They are in fact not separate. American judges are elected based on their political opinions. British judges are appointed and no one knows what their political opinions are. There then followed a whole series of appalling and lying propaganda by all these people. Even the Pope got involved and tried to interfere in the process. It became a scandal leading to violent clashes in the streets, appalling lies on social media, but the truth was that the doctor who talked about this so-called pioneering treatment had not even tested it on mice. He had not even read the notes about this little boy’s case. he had not even visited the little boy to see him. He had done nothing whatsoever and once he was confronted with the facts he agreed with the decisions that had been made. But this did not stop the American right-wing press from politicising this to talk about the dangers of what they call socialised medicine or single-payer government run healthcare. Fox News told its American audience that “the little boy had been sentenced to death by the British government” and the Austin American-State advised its readers that “European bureaucrats made the callous decision that it would not be cost-effective to spend money on the little boy even in the face of possible treatment.”

There is actually no truth in the suggestion that in this case money was ever a question. The question before the courts was what were the best interests of the child and all the clinical evidence as well as the legal judgements were it was not in the best interests of the child for him to continue with almost zero quality of life and the probability of significant pain that might have been increased if these fake treatments had been introduced, let alone the issue of what would have happened to a little boy in such considerable difficulties flying across the Atlantic for several hours while he is suffering massive seizures on a constant basis.

The Children Act lists some factors that the court must consider when it is looking at the best interests of the child:

While the case of this particular little boy and a remarkably similar case involving another little boy that had terrible physical limitations are difficult, it is not just health issues that can come into play. There are also those concerns that arise when a married couple may have significantly different perspectives on the needs of the child because of their religion. In 2012 the case came before the Court of Appeal where the question was whether two young boys of Orthodox Jewish parents should be educated as the father wished – at an ultra- Orthodox Hasidic or Haredi unisex at school – or as the mother desired- at a coeducational modern Orthodox school. The distinctions were significant. The Haredi community do not permit children to watch television, in the main they do not have access to the Internet or social media and mixing with none Haredi children was forbidden. The modern Orthodox school by contrast was far more permissive as far as matters such as television, religious dress and socialising outside the community were concerned. As the court noted, the importance of this decision went beyond the mere choice of school; it was a much more fundamental way of life for the children. Similar issues have come before the courts relating to the rules by which Jehovah’s Witnesses will not permit medical treatment such as blood transfusions. In one case a 15-year-old leukaemia patient refused a lifesaving blood transfusion. The court, while having regard to the boy’s wishes and religious beliefs, nevertheless ordered the transfusion should go ahead. Sadly, a few years later when the young man was no longer a child his leukaemia returned. As a competent adult, nobody could stop him refusing treatment, and he duly died as a martyr to his faith.

While such issues are sensitive the real point of the book is to point out the disgraceful way in which politicians and media and others exploit these difficulties. The author in no way is criticising the parents of these poor children for trying to get what they regarded as the best possible way of saving their children. That is natural and something that all of us might well do in the same circumstances but when the politicians and the media lie or fail to test the truth of the other side they are putting us all into a very, very dangerous place.

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