When can the courts intervene in a child’s life?

Ruth Hawkins

Ruth Hawkins

First published in News

The papers are full of stories about little Ashya King and the search across Europe which culminated with his mum and dad being arrested by the Spanish police, and where until Tuesday night, they were being kept in custody and away from Ashya, whilst the authorities and the courts decided whether they should be extradited here and what should happen to Ashya.

Happily, the European Arrest Warrant has been withdrawn, and by the time you read this, Ashya and his family will have been reunited. As far as I am aware though, Ashya may still be a Ward of Court (wardship), as there is a hearing taking place imminently when those proceedings will either be concluded, or it may be decided to continue them, so that the High Court can keep an overview about what happens to this boy.

Question: So, how has this whole situation come about?

Answer: I don’t know anything about Ashya’s case, other than what I have read and heard about, so I cannot comment on the specifics of the case, or predict the outcome. I can tell you about the process Ashya and his family will face.

It has been confirmed that as well as a European Arrest Warrant being obtained by Hampshire Police, the High Court also intervened and made Ashya a “ward of court”. Often children who have been unlawfully removed from England & Wales (Scotland, Northern Ireland and the rest of the British Isles have different laws) usually by one parent without the other’s agreement, or who are at risk of being removed, are made wards of court by the High Court. Children in serious danger, or at risk of harm or where issues over choice of religion, are all examples of when these orders can be granted. These powers are generally only used in very exceptional circumstances.

By making a wardship order, the High Court becomes a legal guardian of the child, and has the right to make decisions about treatment, place of residence, and all aspects of the child’s life. The court shares parental responsibility with those who also have parental responsibility, generally the parents. The court has the right to make such an order under its historic “inherent jurisdiction” founded in this country’s feudal history, but in modern times formalised under the Administration of Justice Act 1970.

My understanding is that the Local Authority in Ashya’s case has applied to the High Court for the wardship order. That would often be the case, for example, in cases involving a dispute between the parents and those treating a child, then an application could be made to the courts for a wardship order, and the court could make the decision, ideally in consultation with the parents and the treating team about the right form of treatment. My understanding is that this order has been made for now on a temporary short-term basis and the case is due to return to the High Court for a review this week.

At this stage, no one can be clear what will happen. What I hope happens is for the parents and those treating Ashya to have the opportunity of talking to reach an agreement, rather than the heavy-handed approach we have seen. In very many cases where a parent has removed a child from the country, and the matter comes before the courts in wardship proceedings, specialist mediators often become involved to attempt – and often achieve – an agreement about the child’s return, and this is what I hope happens.

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