The wardship jurisdiction

The concept of ‘wardship’ is very ancient. It is part of the court’s ‘inherent jurisdiction’ i.e. the power of the court to make orders about matters which are not included in any statute. This is because the court is treated as a trustee of the Crown’s duty to protect all its subjects.  Wardship is just one facet of this wider inherent jurisdiction.  suesspicoussminds comments:

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

The earliest origins of wardship can be found in feudal times, giving the Crown the right to exercise powers and duties over orphaned children whose fathers had owned land.  These children ‘belonged’ to the King as ‘pater patriae’ (the ‘father of the country’).

In 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connection with wardship. This court was abolished in 1660 but the wardship jurisdiction carried on and the Court of Chancery claimed jurisdiction over children. It began to expand from being merely concerned with property rights, to the general welfare and protection of children.

Lord Cottenham LC in Re Spence (1847) 2 Ph 247, 251 described wardship in these terms:

 I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.

The Guardianship of Infants Act 1886 provided a statutory basis for consideration of children’s welfare – but ‘wardship’ continued to exist beyond statute law as part of the court’s ‘inherent jurisdiction’.

In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

. . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again the term ‘welfare’ in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction.

Modern Day Wardship and its limitation by the Children Act 1989

Practice Direction 12D explains what is meant by wardship and the inherent jurisdiction in the modern age.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.
1.3
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent.

The Children Act 1989 introduced some significant limits to the jurisdiction. Section 100 provides  that wardship may NOT be used to put a child into care as this would by pass the Children Act 1989 and could mean that the necessary statutory tests weren’t met, such as the need to prove significant harm.

The Children Act itself was intended to incorporate many of the beneficial aspects of wardship, such as a flexible range of orders and the intention was that the Children Act would substantially reduce the need for people to apply to the High Court for wardship.

However, the Court of Appeal have confirmed that it is possible to make a child a ward of court when they are voluntarily accommodated by the LA under section 20 – see this post by suesspiciousminds for further discussion. 

If a wardship order is made, it is for the Court to make decisions about the child and the court can’t use wardship to make this decision if it could be made using any other provision of the Children Act 1989.

This is why wardship was used in the case of Ashya King in 2014 whose parents removed him from hospital in the UK and took him to be treated abroad. The LA were not applying to have him taken into care and there was no other provision in the Children Act that was available. Ashya was made a ward of court on the application of the LA and the parents were ordered to take him for medical treatment. Fortunately this case had a happy ending and the court were able to discharge the wardship order and Ashya remained with his parents.

Use of the inherent jurisdiction to accommodate children

For discussion as to when the inherent jurisdiction can be used to authorise placing a child in LA accommodation outside the statutory/regulatory regime see the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam). The court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

See also the discussion of the use of the inherent jurisdiction by the Supreme Court in the case of Re T[2021] UKSC 35, which determined that use of the inherent jurisdiction IS permissible and doesn’t ‘cut across’ the statutory scheme of LA accommodation – but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here