A ward of court is one thing - Ashya King.

A ward of court is said to be ‘a person, especially a minor or one legally incapable of managing his own affairs, placed under the control or protection of a guardian or of a court’.

There has long since been a widespread understanding that situations can arise making it necessary for someone to be made a ward of court and thereby brought within the protection of the court. The case of Ashya King and the use of a European arrest warrant does however raise concerns. These concerns are especially worrying since it has been established that in different but closely related applications to the courts, there has been the clear expectation that the views and opinions of family members and other interested parties will need to be sought.


A ward of court is said to be ‘a person, especially a minor or one legally incapable of managing his own affairs, placed under the control or protection of a guardian or of a court’. (Collins English Dictionary).


An application to the courts is usually made by a family member but this is not always the case. The request does not have to be made by a family member. The person’s own solicitor, his or her doctor or the hospital authorities if he or she is a patient in a hospital may make the application. The application will be made to the High Court which has powers to make certain orders regarding children where they have been removed, are in serious danger or at risk. The court will then make the child a ward of court if it is felt appropriate to do so. At this point no action which will affect the child can be taken without permission from the High Court. The child will become the responsibility of the court and such orders are comparatively rare.


This was acknowledged in Mr Justice Baker's recent consideration of whether there was a need for Ashya to continue to be the subject of the courts' protection. Mr Justice Baker commented that given what the local authority knew at the time about Ashya's removal from Southampton hospital to Spain it had "acted entirely correctly in applying to the High Court and Judge Arthur was right in making Ashya a ward of court." Medical conditions are a common ground for wardship (Paragraph 1.2 of Practice Direction 12D of the FPR).


Following news that Ashya was to be admitted to the hospital in Prague for treatment of the kind sought by Ashya's parents Mr Justice Baker went on to say "Responsibility about a child rests with his parents. In most cases the parents are the best people to make decisions about a child. The state has no business in interfering in the parental responsibility unless the child is suffering or is likely to suffer considerable harm."


The need for wardship in medical cases is not uncommon and this is mentioned in practice directions. The assistance of the police may also be sought to prevent removal from the country (Practice Direction 12F (International Child Abduction), paras 4.4 - 4.7).

A medical tug of war with a child in the middle is not good for anyone. Traditionally, except in an emergency, consent from parents is required in order to perform medical procedures on children. The courts recognise that parents have rights but have to recognise that these rights are not absolute and should promote the welfare of children. In view of this, is there a need for further guidance in relation to these matters?

 

 

Judgment and Family Court Orders in the matter of Ashya King

 

Ashya King: Is it a crime to take your child out of hospital

 

The police's response to the Ashya King case is deeply troubling

 

Practice direction 12d - inherent jurisdiction

 

Practice Direction 12F - Ministry of Justice

 

 

 

 

 

 

 

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