Ashya King case shows how parents can be let down by the law

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Created on Tuesday, 09 September 2014 00:00

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Ashya King case shows how parents can be let down by the law

With hindsight, we can see that police and prosecutors acted on the only information they had: the advice of the boy's doctors

Joshua Rozenberg

Everyone agrees that the case of Ashya King went terribly wrong. But now that the five-year-old has been reunited with his parents in Spain, we can take a calmer look at whether Brett and Naghmeh King were let down by the law.

The dispute arose over what sort of radiotherapy Ashya should receive after undergoing surgery at Southampton general hospital for the removal of a brain tumour. His parents say they asked for proton beam treatment instead of standard radiotherapy as they thought it would be less harmful. The hospital says it told the boy's parents there was "likely to be no difference in survival between standard radiotherapy and proton radiotherapy and overall no proven significant benefit".

Clearly, relations between the hospital and the parents had broken down by last week Thursday, when the Kings took their child away. Brett King said the hospital had threatened to apply for a court order, which he believed would have allowed doctors to treat Ashya without parental consent. The hospital disagrees, though it is clear the issue was discussed.

Six hours after Ashya disappeared, the hospital called police. Staff said they were concerned for the boy's safety. He was being fed through a nasogastric tube, used in conjunction with an electric pump. His parents had brought the pump with them when they took him into the hospital grounds, but they left its mains lead in the ward, perhaps to avoid suspicion. The pump contains a battery but it is intended only for occasional use.

Was Ashya at risk once he was taken out of the hospital grounds? Yes, according to the doctors. "If a nasogastric tube became displaced, either accidentally or through vomiting, there was a possibility that feed could enter the lungs with potentially fatal consequences," they said. "Ashya has no gag reflex and the family are not trained to deal with the (potentially serious) complications of choking." And, of course, the battery might have run out.

The doctors informed the police, who told the Crown Prosecution Service (CPS). On the evidence prosecutors were shown, they thought "there was a likelihood that this five-year-old boy was at serious risk of threat to his life and that he could not receive the care that he required unless he was under the care of medical professionals".

With hindsight, we can see that this was wrong. Ashya's parents drove him to Spain with no apparent ill effects. But which of the authorities had overreacted? We cannot be sure, but the finger of suspicion must point towards staff at Southampton hospital. They led police and prosecutors to believe that Ashya's life was in danger unless he was found quickly. Since the Kings were not around to give their side of the story, the criminal justice system had to take the doctors at their word.

In general, parents can decide what medical treatment their children should receive. But section 1 of the Children and Young Persons Act 1933 makes it an offence for an adult with responsibility for a child to wilfully neglect the child in a manner likely to cause injury to the child's health. This offence, known as child cruelty, can be committed by failing to provide medical assistance.

The CPS seems to have concluded last Friday there were reasonable grounds to suspect the Kings of this offence – though prosecutors later accepted they had been wrong. They were told this week that Ashya's parents had ordered specialist foods for him and had managed to charge his feeding-pump using their car battery.

Last Friday, though, prosecutors applied to a district judge at Southampton magistrates' court for a European arrest warrant, enabling the Kings to be arrested anywhere in the EU. They were soon found in Spain and detained.

On the strength of what Hampshire police had said over the weekend, the campaign group Fair Trials International raised doubts on Monday over whether the arrest warrant should have been granted.

Other lawyers went further. On Wednesday, Dan Hyde, a business crime partner at the HowardKennedyFsi law firm, said: "It could be argued that measures taken are an abuse of the European arrest warrant, with parallels to countries or states that use extradition and Interpol red notices for political ends. It would certainly have been an abuse if the arrest warrant had been issued merely because Ashya had been taken abroad by his parents. But it does look as if the police, prosecutors and district judge had reasonable grounds for suspecting that an offence had been committed."

Hyde continued: "To so quickly declare the Kings' actions tantamount to criminal cruelty by wilful neglect was to entirely disregard the parental love for their child and be blinkered to the inevitable arrest, incarceration and distress that would follow."

That is certainly how it looks now. But how could the authorities have been sure last Friday, given what they had been told by the hospital?

On Tuesday, the CPS decided that the Kings would not face any criminal charges and arranged for the arrest warrant to be discharged. The couple were then freed.

But that had no effect on parallel civil proceedings. Last Friday, Portsmouth social services department took the step that Ashya's parents most feared. At the city council's request, the child was made a ward of court. That gave the court parental responsibility.

Ashya's parents were ordered to present him to the nearest hospital "forthwith" and not remove him from hospital without permission of the court. But they were not required to return him to England until local doctors decided it was appropriate to do so. And they were certainly not banned from seeing him, despite what the Kings seemed to believe.

A further wardship hearing took place on Tuesday. Crucially, the senior family judge Sir James Munby had decided that the court should sit in public with adequate notice to the media. There were no reporting restrictions.

Not long ago, such proceedings would have taken place in secrecy to protect the privacy of the child concerned. But in this case there was no longer any privacy to be protected. Forcing the local authority and the hospital to explain their position in public seems to have encouraged the police and prosecutors to account for their actions too.

The family court appears to have handled the case with care and sensitivity. A judge will consider the Kings' views as well as doctors' opinions before deciding what treatment Ashya should receive.

The criminal courts in England and Spain also seem to have acted appropriately, given the evidence before them. So do the police and prosecutors. But what about the hospital? It has provided six reasons for its concern. Four were plausible: Ashya's parents had not been trained to use his feeding tube; the battery might run out; food might enter the child's lungs and kill him; he might choke. Two were unconvincing: he had a temperature and might get an infection; he needed to start his chemotherapy soon to ensure the best chance of recovery.

What the hospital has yet to explain is why it had lost the trust of Ashya's family. Certainly, it must be difficult to deal with parents who believe they are better at judging what is best for their child than specialist doctors. But the Kings are certainly not the first people to find themselves in this position. And given what they have achieved – despite all the anguish they suffered – they are unlikely to be the last.

Source: The Guardian UK, 04 September 2014