At the direction of the President of the Family Division, Sir James Munby, the wardship proceedings in relation to Ashya King have been listed for hearing in open court at the Royal Courts of Justice (Court 45) before Mr Justice Baker at 2.30 pm today, Tuesday 2 September 2014.
The High Court order of 29 August is available here.
It’s a case which has stirred a nation,
but the story of Ashya King, a little boy with a brain tumour whose parents
sought treatment abroad highlights a concerning truth about the European Arrest
Warrant (EAW), and its use in family cases.
Ashya King is a five-year old boy with a
brain tumour which requires immediate medical attention. His parents wanted a
specific treatment to eradicate the tumour, a treatment which unfortunately was
not available in the UK.
It was, however, available in other parts of Europe,
and so widely known that it remains routine for British hospitals to refer
patients to those centres for the treatment. But Ashya was not referred, and so
the parents took matters into their own hands.
Leaving the UK,
the family travelled to Malaga
where they knew of a hospital offering the therapy. A therapy which promised to
target the tumour specifically, and spare Ashya at least some of the pain and
suffering radiation treatment inevitably entails.
The hospital, concerned that Ashya needed
immediate intervention sounded the alarm, and in the days that followed, a
EAW was issued, the family located, and the parents
arrested in Spain.
Ashya continues to be treated in hospital in Malaga without his parents and family
members, and the parents themselves remain in custody as they await their
extradition hearing, which they will oppose.
The use, or misuse of EAWs has been the subject of much debate over the last four years.
EAWs have been in operation since 2004, and the number of requests to
return people to the UK
has increased dramatically over that time. An EAW is valid throughout all Member States of the European
Union (EU). Once one is issued, it requires another member state to arrest
and transfer a criminal suspect or sentenced person to the issuing state so
that the person can be put on trial or complete a detention period.
EAWs are supposed to be used for only the most serious criminal offences.
At first glance the EAW may not look as if
it might be relevant to family law, but this criminal law warrant has become an
integral part of our system. We see it used most typically when a family flees
the jurisdiction after local authority intervention, amid child welfare
concerns. EAWs are issued to ensure the safe return of children who may be in
need of support, or protection. When used properly, and justly, it is a force
for good, an effective tool for safeguarding our most vulnerable children. But
over the last few years, there has been growing concern that the EAW has been sorely abused, so much so that MPs and legal charities
have sought to have the use of EAWs examined and have even called to scale back
Justice, an all-party law reform charity
, focus much of their attention on human rights
breaches and EAWs and our Deputy Prime Minister, Nick Clegg also feels
these warrants are not being used as they should be.
Fair Trials International even proposes a
proportionality test and greater clarity that courts must refuse extradition if
it were to violate basic human rights.
On 31 October, 2013, The Home Affairs Committee called on the government
to examine the current state of the EAW
and to address what they perceived to be the many flaws at play
within the warrant process. The potential miscarriages of justice were
highlighted by The Home Secretary in the Committee’s report
extradition arrangements are wrong, they can have a detrimental effect on our
Then, in November 2013, Theresa May vowed to
change the law to prevent the warrant being used to extradite UK nationals on
trivial, or dubious charges.
It is difficult to understand how and why
child welfare and medical professionals went to the lengths they did in the
Ashya case. Notwithstanding the rational concerns of doctors and police that
Ashya needed urgent medical treatment, this was and remains a case where the
parents have not broken any laws, nor shirked their responsibilities as
parents. Indeed, they took their duties so seriously they sought out medical
intervention that would not only promise to cure their son, but to minimise his
pain and suffering during the process. There are to date no child welfare
concerns, and whilst British police have landed on Spanish soil, they are
adamant they are not there to arrest Mr and Mrs King. However, Mr and Mrs
King remain in custody in Spain.
The impact of this
EAW has separated a child from his parents at a time in his
life when he needs them most. There is, of course, a strong case to argue that
the family’s civil liberties, freedom of movement and right to family life at
such a precarious time have all been thwarted by a well-meaning, but misguided
warrant. Where legal measures impact children directly, we must ask ourselves
whether the use of those measures are just, and right, always.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.