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A day in the life Of...
Edward Bennett
Edward Bennett
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Researching Reform: Ashya King – family law and the European Arrest Warrant
Date:2 SEP 2014
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.
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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 its powers.

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 stating, 'When extradition arrangements are wrong, they can have a detrimental effect on our civil liberties.' 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.