Tiffany Jenkins: Best interests of Ashya King

Ashya's parents were apart from their child for five days. Picture: Getty

FIVE days is a long time in the life of a five-year-old boy desperately ill with cancer. That’s how long Ashya King was forcibly separated from his parents, Brett and Naghmeh King, after they were arrested and jailed.

No doubt Ashya remains upset and confused, even though he has been reunited with his mother and father, or rather, just about reunited – his parents would not be able to remove him from the Malaga hospital in Spain, where he is now, even if they wanted to, because he remains a ward of court: Ashya is formally in the custody of British authorities.

I first heard about Ashya King on a radio news bulletin. It reported a frantic search across Europe for a young boy with terminal cancer who had been taken by his father from Southampton General Hospital. The battery for his feeding tube was about to expire, the newsreader said. “Time is running out,” was the message from the police. It was hard not to think something terrible was happening, that the parents had somehow lost their grip on reality, and that the boy had to be rescued.

Considerable criminal and family law was fired at the King family. Portsmouth’s city council made Ashya a ward of court, claiming he was in serious danger of wilful neglect, which meant that his parents have lost their rights to care for him. The police issued a European arrest warrant enabling the Kings to be picked up anywhere in the EU. When, in July 2013, the Home Secretary Theresa May, made the case for thewarrant, she referred to rapists, murderers and paedophiles. This case is a salutary reminder that law brought in to tackle particular problems is often promiscuously applied to other cases.

We hear a lot today about the best interests of the child. What’s clear in this case is that the authorities were not acting in the best interests of this child, and that this principle is all too often used to justify unwarranted intervention. It is alarming that, instead of learning lessons from this case, calls continue for the state to step in more often and in more areas of life. I don’t just mean the state-appointed guardian for every child in Scotland, which seems, horrifyingly, to have inspired David Cameron to look “very carefully” at an independent child guardian scheme in England, I also mean the proposed “Cinderella law” which will make make emotional “neglect” in a family illegal. There is so much child protection activity directed at families, I wonder if a licence to parent will be introduced, or family life outlawed altogether because it is deemed too dangerous.

The assumption in this case and across society appears to be that parents are a threat to their children, and that they should prove their innocence. No doubt some are a threat, but most are not. While Brett and Naghmeh King had removed Ashya from Southampton General Hospital, it wasn’t because they had taken leave of their senses and were placing their son at risk, it was because he wasn’t going to receive a particular kind of radiotherapy treatment they believe he needs.

That is why they were taking him to Spain. Ashya’s parents had taken great care when removing him from hospital to take him to another one – as any parent would. They had ordered specialist nutrition for him; were able to change his feeding tube; and charged his feeding tube with a car battery. It has also became clear latterly that his condition is not imminently terminal, as was suggested.

It is understandable that these parents, desperate to save their little boy, grasped on to the possibility of radiation treatment. It is also understandable that this treatment might not be available at the hospital. It’s likely that the parents had unreasonable expectations – the promise of consumer choice in the NHS may have created a monster. We know that the relationship between the doctors and the family broke down. It may have got nasty. And it may not have been the best decision to remove Ashya from one hospital in order for him to receive treatment elsewhere, it may also save him: we don’t know. But it was the parents’ decision to make.

So now comes the reckoning. The Crown Prosecution Service accept they got it wrong, and that there was not sufficient evidence for the accusation of wilful neglect. Some commentators have pointed out that it is easy to get things wrong in such a situation, one where emotions and concerns are running high, and they run high, don’t they, when it comes to children, at all times – let alone ones with a life-threatening disease. Some suggest that this case was just an accident, a one-off, and that regardless: it is better to be safe than sorry – the mantra for our times. Assistant chief constable of Hampshire Police Chris Shead thinks so, saying of Ashya King: “I make no apology for being as proactive as possible in trying to find him. I’d much rather be standing here facing criticism over being proactive than do nothing and explain why a child has lost his life.”

But Ashya wasn’t about to lose his life. If you examine what happened, there was a massive – and frightening – over-reaction to the actions of these parents which cannot be brushed aside. At every stage, the authorities acted as if the parents were a threat to their own little boy. And as a consequence of this consistently unproven assumption, the family of a sick child was ripped apart. These actions did not save a life, they caused harm. What can poor Ashya be thinking, as he now lies in his hospital bed?

What gives me hope is the public outrage at how the authorities acted. Normal people, those who do not automatically think the worst of parents, who know most love and want to protect their children, have been vocal in their disgust at how this family has been treated. They know Mum and Dad know best.