On the plight of a child – a case for compulsory mediation

Few of us will have been unmoved by the tragic story of Charlie Gard, the baby whose body had all but shut down being kept alive by artificial respiration. There were such profound differences of opinion between Ormond Street Hospital and the parents that it necessitated the decision of judges to decide on the fate of Charlie – a decision that no judge could possibly wish to make. This week the parents decided that their child had deteriorated in the months of legal wrangling top the extent that recovery of any meaningful support wasn’t achievable and it was they rather than the judge that made the decision to switch off his life support. Did anyone mention the possibility of mediation? You had to await the judge’s , Mr Justice Francis’s, decision for mediation to be mentioned:

“I have already expressed the opinion that I believe that it would, in all cases like this, be helpful for there to be some form of Issues Resolution Hearing or other form of mediation where the parties can have confidential conversations to see what common ground can be reached between them. I believe that that type of hearing, be it Judge led or some other form of private mediation, would have led to a greater understanding between the parents and the clinical team in this case. I am not saying that it would necessarily have led to a resolution, but I think in many such cases it would and I would like to think that in future cases like this such attempts can be made… Almost all family proceedings are now subject to compulsory court led dispute resolution hearings. I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee.”

From what one gleaned from the reports, the publicity encouraged people to take sides and you had everyone from President Trump to the Pope weighing in. The pressure on the parents to do what they thought was right for Charlie must have been unimaginably difficult, and no-one should criticise them for wishing to travel that extra mile even if there was but one tiny jot of hope there for him. But wind the way back to the appeal raising over a million pounds before proceedings were started by the hospital; at that stage the parents and the hospital must have been aware of months of litigation – during which Charlie’s prognosis was bound to get worse, whilst support matched by increasingly unachievable possibilities got greater. Had there been an opportunity through some sort of assisted mediation as then judge would have wished at the very least there would have been a better understanding of each other, or even some agreement found. Some years back you may recall the Alder Hay Hospital case where children’s body p[arts were retained by the hospital unbeknown to the distraught parents. There were a series of private mediations which resolved all or most of the cases against the hospital. Parents wanted by and large a chance to say how much they were affected and to seek an explanation and a suitable apology from the hospital. Charlie’s case just might have been resolved this way. In highly emotive cases such as these there is a real case for compulsory mediation. I don’t like the word ‘compulsory’ as it sounds combative and formulaic. But there’s no doubt that if people in conflict are given space and privacy they usually cherish that opportunity to build bridges not walls. More the pity that in this case the opportunity to do so doesn’t appear to have been canvassed let alone taken up – there were no winners. God bless little Charlie.

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