By Rhiannon Snaith, 20 September 2023
Indi Gregory is a six-month-old baby girl who has mitochondrial disease, a rare and incurable genetic condition that drains energy from the body’s cells. She also has a hole in her heart, and soon after her birth underwent operations on her bowel, and her brain to drain fluid.
Despite doctors advising that it may be kinder to let Indi die, her parents Claire Staniforth and Dean Gregory want her treatment to continue. As there is disagreement between the hospital and the parents, Nottingham University Hospitals NHS Trust has made a court application asking the judge for a declaration that it would be in Indi’s best interests not to receive additional life-sustaining treatment or painful interventions, and that it’s lawful for her clinicians to withhold those treatments. The parents oppose this application. There was a hearing on 15 September 2023 in the Family Court.
What I know about this case – and the 15 September hearing – is based on media reports such as these: “Judge to decide on ending critically ill baby girl’s life support”; “Parents of critically-ill Indi Gregory begin High Court fight to continue life support treatment”.
I am a PhD student researching media representations of end-of-life decisions. I have observed several hearings in the Court of Protection (COP), all of which have provided me with invaluable insights into the court process, and the complex nature of end-of-life decision-making. My experience of COP hearings has enhanced my understanding of these issues and enabled a more informed analysis of media coverage and portrayals of these cases. I’ve written (or contributed to) five blog posts about COP hearings:
- Withdrawing treatment from a pastor in a coma: Balancing religious beliefs and medical realities
- Coma and treatment withdrawal: An unusual case
- Treatment escalation for a teenager in ICU
- Researching the Court of Protection: Accessing hearings as a PhD student
- Family witnesses in court: Four reflections on Re AH (A Rehearing)
So, when I heard that there was going to be a hearing about Indi Gregory, I was keen to observe it. The previous cases I’ve watched have all concerned adults (mostly in prolonged disorders of consciousness) – this would be an interesting counterpoint, and it was also attracting considerable media attention. I want to understand how the media portrays the complex medical and ethical dilemmas that arise in court hearings of this kind, and how media framing – including the language, narratives, sources, and imagery used in reporting – can impact and shape public understanding of end-of-life decisions. Researching and analysing how cases such as these are discussed and portrayed in the media can provide an insight into how public discourse and understandings are influenced, how societal attitudes are constructed and how the media navigates legal rulings about sensitive topics.
Access to the Family Court
Alas, this hearing was not in the Court of Protection – which hears cases about adults – but in the Family Court – although the judge hearing the case, Mr Justice Peel, also often sits in the Court of Protection. I submitted a request for the link, but I was told (via email) that the hearing would be private. According to Family Court rules, this this means that I’m not permitted to attend because only accredited journalists and “legal bloggers” (who have to be qualified lawyers) are allowed to do so.
The Court of Protection generally conducts hearings in public, allowing members of the public to attend and to report on the proceedings subject to certain restrictions outlined in the Transparency Orders. By contrast, the Family Court primarily conducts hearings in private which means that attendance is limited to journalists and lawyers – and there is no automatic right for them even to report on what they observe.
A journalist who has worked indefatigably for transparency in the Family Court, Louise Tickle, has recently tweeted about this.
The Family Court implemented a ‘Transparency Pilot’ at the end of January 2023 (expected to last for one year) which allows ‘pilot reporters’ (consisting of journalists and legal bloggers) to attend and report on cases, subject to compliance with restrictions noted in the Transparency Orders. (More information about the Transparency Pilot is available on the Judiciary Website (here) and on the Transparency Project website. )The pilot limited to three locations – Cardiff, Carlisle and Leeds – and, unlike the Transparency Pilot in the Court of Protection (launched in 2016 and now incorporated into daily practice), which allows ordinary members of the public to observe, the Family Court’s transparency pilot does not.
Following the email informing me that I would not be able to attend, Celia Kitzinger let me know that she had been granted access to the hearing. Although she is neither an accredited journalist nor a “legal blogger” (according to the definition of the Family Court), the judge had said she could observe. In an attempt to enable me, too, to have access, Celia informed court staff that I was a PhD student studying media representations of end-of-life court decisions and that she was supervising my observations of court hearings, all of which had been Court of Protection hearings so far. We were then told that it should be okay for me to observe, and Celia forwarded me the link.
It was a ‘hybrid’ hearing, and most people attended in the physical courtroom at the Royal Courts of Justice. After joining the link, I spent some time in the waiting room before being admitted. On admission, I was asked to explain – in front of all the assembled lawyers – who I was and “which party I was for”. Following my explanation, I was told that it was a private hearing that I was not allowed access to, and I was publicly removed. For me, the whole situation was highly stressful especially having to speak in court and then be removed, despite having previously been told that I would be allowed to observe. I left feeling frustrated and disappointed.
I would have been very interested in observing this case. I believe allowing both journalists and public observers to be present has a range of benefits – as is apparent from reports arising from both the Court of Protection and from the criminal courts. As Celia Kitzinger has said, in her “Evidence for Ministry of Justice Consultation on ‘Open justice: The way forward‘”
Despite the claim that journalists are “the eyes and ears of the public”, there are, as evidenced below, significant differences between what journalists ‘see’, ‘hear’ and report about court hearings, and what members of the public ‘see’, ‘hear’ and report. Open justice requires that we have direct access to the court and are able to observe for ourselves the process whereby judges and lawyers are “doing justice” with our own eyes and our own ears.
Evidence for Ministry of Justice Consultation
Access to the Family Courts for members of the public, as well as journalists, would supports a diverse range of perspectives, improve transparency, and enhance public understanding and engagement. As I have addressed in a previous blog (here), the benefits of having both media coverage and a blog written by a public observer about the case are substantial. Each piece offers a unique perspective of the case, oftentimes with public observers offering knowledge and expertise from a range of backgrounds.
As Celia Kitzinger says:
…. one case that attracted a lot of media attention concerned whether it was in the best interests of William Verden, a teenager with a learning disability, autism and ADHD, to have a kidney transplant. Media reports (e.g. here) were short, pithy, factual, and aimed at a general readership. But members of the public who observed the hearing and blogged about it did so from specific professional and personal viewpoints and presented sustained and in-depth examination of the issues involved: from the perspective of a medical ethicist and mother of an autistic child (Imogen Gould); as an academic researcher on kidney donation (Bonnie Venter); and as a trainee barrister focusing on advocacy in the court (Jordan Briggs).
What journalists ‘see’, and report is organised with reference to whether it’s (in their terms) ‘a story’ or not. Members of the public observe court hearings through a multiplicity of very different lenses. Compare for example media reports of the case of the woman with agoraphobia ordered by the court to give birth in hospital with the blogs from our contributors, who include a woman with agoraphobia, a medical ethicist, and some midwives. Each of them brings her or his own unique personal and professional experience to bear, and each of them speaks authoritatively to a specialist constituency in relation to whom they are able to engage with acknowledged expertise.
A fundamental difference between press accounts and the blogs authored by members of the public is that while journalists, by and large, focus on communicating “the facts” and the story behind them, members of the public regularly provide commentary on the case they’ve observed, reflections on their experience of observing it, and make connections with their own personal and professional experience.
Evidence for Ministry of Justice Consultation
The newly-formed “Courts and Tribunals Observers’ Network” is a UK-based initiative focused on how the public can be supported to observe courts and access court information in digital and physical environments. The Network has raised concerns about the “two-tier’ system whereby some categories of observers (journalists and lawyers) get privileged access to the courts.
This case is back in court on 27 September 2023, and I plan to make a written application to observe it in advance of the hearing. Given what I’m reading about the Family Court, I don’t hold out much hope of success, but it seems worth trying – given the huge media impact of the case, and its importance for my own research project in understanding how the media reports on cases such as these.
Rhiannon Snaith is an ESRC-funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has previously blogged for the Project here and here. You can learn more about her work by checking out her academic profile and her Twitter profile.
Promoting Open Justice in the Court of Protection 