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What Place does Wardship have in Modern Family Proceedings?

Leanne Buckley-Thomson, barrister at 12 College Place, provides an overview of wardship and considers its usefulness in modern family proceedings.


Leanne Buckley-Thomson, barrister, 12 College Place, Southampton


 

 

 

 

 




Leanne Buckley-Thomson, barrister, 12 College Place

Introduction
The High Court's inherent jurisdiction is well-known and of particular use when faced with an unusual and novel situation in a case.  In relation to children, the High Court has exercised its inherent jurisdiction historically by making a child a ward of the Court.  It is not appropriate in this article to recount the interesting feudal history behind the jurisdiction, but it should be noted that wardship had existed in some form for centuries before being brought into the realms of the Family Division of the High Court under s 1(2) of and Schedule 1 to the Administration of Justice Act 1970.  Ultimately, the wardship jurisdiction is derived from the delegated performance of the duties of the Crown to protect its subjects1.  The distinguishing characteristics of wardship are that custody of a child who is a ward is vested in the court and 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 consent2.

Procedure
An application for wardship must be started in the High Court although proceedings may be transferred to the county court once a child becomes a ward unless issues of fact or law make them more suitable to remain3.  Any person 'with a genuine interest in or relation to the child', or the child, may instigate wardship proceedings as can the local authority with the court's permission4.  A respondent may be the parent or guardian of the child or any other person with an interest in or relationship to the child, or the child, if with the court's permission5.  The application must be issued in the High Court with a supporting affidavit detailing the grounds for the application and an originating summons in wardship.  The child becomes a ward of the court immediately upon the making of the application6 and the court officer sends a copy of the application to the Principal Registry to be recorded in the register of wards7.  The respondent must file an acknowledgement of service in the usual way and must also file a notice stating their address and either the whereabouts of the child or confirming that they are unaware of the same8.  This must be served by them on the applicant unless otherwise directed and the court must be immediately notified of any changes.  An application for a hearing must be made within 21 days and at that hearing if the court does not confirm the wardship it will lapse9.

Common circumstances in which a child might be warded
When a child is made a ward, the court 'takes over the ultimate responsibility for the child'10 sharing parental responsibility with those who already hold it, but exerting control over important decisions.  Indeed no important step in the child's life can be taken without leave of the court11.  The most common situations in which the court may make an injunction for the child's protection are outlined at paragraph 1.2 of Practice Direction 12D of the FPR, and are as follows:

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.

Of course circumstances in which wardship proceedings may be successful are not necessarily limited to such examples.  Further, an application for permission must be made to the court before proceedings are started to adopt the child, to place the child for adoption with parental consent or to start proceedings for a placement order12.  In the absence of any other statutory limitation, a child will usually cease to be a ward upon their majority or further order.

The 'Children Act effect'
Prior to the Children Act 1989 wardship was widely used by practitioners and local authorities, in particular due to lacunae in the then arguably inadequate legislation relating to children.  Wardship proceedings were often the only recourse for local authorities, relatives who had previously been unable to initiate proceedings, and in some circumstances for parents.  The Children Act 1989 was drafted with wardship in mind, demonstrated by the move from the previously adversarial approach of legislation to one which was more child-focused.  The Act significantly restricted the use of wardship by providing a statutory scheme to deal with most circumstances in both public and private law where wardship might hitherto have been the only available solution.  Indeed Practice Direction 12D of the FPR is clear that 'such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989'.  Accordingly wardship proceedings significantly declined. 

The Children Act 1989 restrictions with respect to wardship are particularly clear concerning public law cases.  Where a care order is made under s 31 of the Children Act 1989, s 91(4) of the Act specifically states that 'the making of a care order with respect to a child who is a ward of court brings that wardship to an end'.  Section 100 of the Children Act 1989 further restricts the use of the wardship jurisdiction in care cases.  Whereas previously section 7 of the Family Law Reform Act 1969 gave the High Court power to place a ward of the court in the care, or under the supervision, of a local authority, s 100(1) is clear that this ceases to be the case under the 1989 Act.   Section 100(2) stipulates that the High Court's inherent jurisdiction cannot be exercised:

a. so as to require a child to be placed in the care, or put under the supervision, of a local authority;
b. so as to require a child to be accommodated by or on behalf of a local authority;
c. so as to make a child who is the subject of a care order a ward of court; or
d. for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

A local authority must obtain the leave of the court before making any application for wardship13 and such leave will only be granted if the court is satisfied that the result 'could not be achieved through the making of any order' which could be made otherwise than in the exercise of the inherent jurisdiction of the court and which the local authority is entitled to apply for14  and there is 'reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm'.  Indeed, as is well-known, s 8 of the Children Act 1989 provides for prohibited steps and specific issue orders which have clearly been modelled to cover those situations previously dealt with by wardship and local authorities can apply for the same thus restricting the berth for arguing that the result could not be achieved without resorting to making the relevant child a ward of the Court.  In the case of private law proceedings, the provisions outlined in section 8 and availability of special guardianship orders also substantially reduced the need for resolution through wardship.

Is there still a place for wardship?
Whilst the Children Act 1989 severely restricted use of the jurisdiction, despite the many years since its enactment wardship has not shrivelled up out of all existence; although sometimes it may feel like it has.  It may still prove a useful tool in certain cases and practitioners should remain alive to it.

Care
Although s 100(2) of the Act is clear and wardship cannot be used to bring about accommodation for a child, nor to manipulate the child coming into the care of the local authority, it remains an option where the child is not yet in local authority care but there are concerns.   Once example of how wardship can work is where the child is accommodated voluntarily under s 20 of the Children Act 1989.  In the recent case of Re E (Wardship order: Child in Voluntary Accommodation) [2012] EWCA Civ 1773, Lord Justice Thorpe made it quite clear that voluntary accommodation is not incompatible with wardship.  Whilst noting the plain intention and effect of section 100 as preventing the court in wardship from 'making any order which has the effect of requiring a child to be placed in care or under the supervision of a local authority', Lord Justice Thorpe went on to say that 'there is nothing in section 100 that either explicitly or implicitly precludes the Court from making an order in wardship where the child is not required to be accommodated, but is voluntarily accommodated'15.  Indeed, wardship offers a good middle ground between a s 20 situation and pursuing a care order as both the local authority and the parents are accountable to the court and there is an obligation on the local authority to keep the court and the parents informed. 

Another example is provided by the case of K (Children) [2011] EWHC B21 (Fam).  The family concerned consisted of five children, three of whom had serious complex disabilities.  This was not a situation whereby the children were at risk of significant harm due to the care being provided to them by their parents; however significant harm was a real daily risk to some of the children given the complex disabilities being dealt with.  Clearly the local authority and parents needed to work together.  Mr Justice Hedley acknowledged an attempt to see whether a way forward could be found in partnership without the need for a damaging trial over threshold criteria16.  It was noted that there was agreement in the case as to where the children reside and that what was required was 'a legal framework which kept all parties on equal terms and did not undermine the morale of the parents…but nevertheless made both parents and the Local Authority accountable to the Court…'17.   Making the children wards of the court in this scenario ensured that there was an element of protection whilst also avoiding the 'damaging trial over threshold' Mr Justice Hedley was concerned might otherwise ensue.

Wardship has also been used in situations whereby supervision and residence orders have been made following care proceedings, as both the cases of Re M and J (Wardship: Supervision and Residence Orders) [2003] EWHC 1585 (Fam) and Re W and X (Wardship: Relatives Rejectied as Foster Carers) [2003] EWHC 2206 (Fam) demonstrate.  In the first case, the local authority had issued care proceedings in respect of two boys who had always resided with their mother.  The mother and her new husband conceded threshold and agreed that one boy should reside with his father and the other with his maternal grandmother.  They did not accept the extent of the harm alleged in the reports of the psychologist and took issue with a number of factual matters.  The local authority also did not agree entirely with the psychologist's findings but did not seek alternative orders to those recommended.  The psychologist's evidence was not tested.  The local authority recommended residence and supervision orders, and suggested further assessment would be required if the court was minded to make care orders which may result in alternative placements.  The court made a residence order and supervision order whilst also making the children wards of court.  It was recognised that this was an 'exceptional course' but that this was justified due to the degree and nature of harm suffered and likely to be suffered, and the degree and nature of harm existing within the family.  Wardship was the best solution due to the opportunity to return to court and combination of orders.

In the case of Re W and X, the local authority had issued care proceedings in relation to four children in the family.  It was agreed that threshold was satisfied and that the parents could not care for the children.  With respect to the three elder children the local authority wanted the children to be left in the care of their maternal grandparents subject to a care order; however they had been rejected as foster parents and therefore the combined effect of the Children Act 1989 and the Fostering Services Regulations 2002 [now revoked and replaced by the Fostering Services (England) Regulations 2011] would place the local authority under an obligation to remove the children from the care of their grandparents as soon as a care order was made.  The local authority invited the court to make a residence order with a supervision and written agreement between the grandparents and local authority. The court, however, also made the three elder children wards of the court to reconcile the lacuna in the statutory provisions which prevented using a care order to achieve external control in these specific circumstances.  Section 100 was deemed not to be contravened and wardship justifiable.  Although the 2002 Regulations have been revoked, the case usefully demonstrates the type of situation in which wardship may be deemed appropriate.  Ultimately it falls to whether or not the Act provides a solution which could not be achieved through any other order.

Private Law
Although the Children Act 1989 covers most situations one might envisage in private law proceedings wardship can still prove useful to protect the child in cases where the public and private law divide is less clear.  In the case of T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230 the parents, who were separated, had become deeply conflicted over contact arrangements and the child had been made a ward of the court.  Although there had been substantial compliance with court orders throughout proceedings and by this stage the father was having staying contact, the mother continued to make unsubstantiated allegations and the father showed no insight into the problems caused by his behaviour.  The child had a potentially serious physical condition, the resultant medical advice being to circumcise the child.  The court made a detailed order in wardship for the child to live with the mother whilst spending significantly increased time with the father alongside a family assistance order.  The judge reserved all applications for the next 16 months to himself to be listed ex parte in order to establish whether judicial enquiry was merited.  The case is useful in that it was made clear that wardship remains permissible where the needs of the child required it within a private law context.  In these specific circumstances wardship was deemed appropriate to continue as the exercise of parental responsibility had been effectively abrogated by incessant parental conflict, a residence order had assumed totemic status in the parents' minds and would be unhelpful to the child's future care, and there was an unusual need for the court to exercise control through detailed provisions. 

Emergency situations
Due to the immediate effect of wardship, the jurisdiction remains particularly useful in emergency situations such as where medical treatment is required18, forced marriage is anticipated19, or there has been threatened child abduction.  The child becomes a ward of the court immediately upon the originating summons being issued thereby providing immediate protection.  Furthermore an application to the High Court may also be taken more seriously and have greater weight.  Of course, when the matter is brought before the court for consideration it may well be that the court is not satisfied, upon consideration, that wardship is the appropriate recourse. However at least the position will have been frozen up to that point.  Due to the immediate nature of wardship it remains particularly effective in threatened child abduction cases.  A child who is a ward of court may not be removed from England and Wales without the court's permission and where such permission has not been given, police assistance to prevent removal may be obtained20.  Such proceedings are, however, limited to children who are habitually resident in the UK and thus are subject to the jurisdiction. 

There have been a number of cases dealing with this point.  An example is provided by the case of ZA and PA v NA (Abduction: Habitual Residence) [2012] EWCA Civ 1396.  Both parents were from Pakistan but had settled in the UK with their three children.  The father became physically abusive to the mother who sought refuge before reconciling with the father on a holiday to Pakistan.  During this trip the father seized the family's passports.  Upon a fourth child being born in Pakistan, the mother visited her father and recovered her passport before flying back to the UK.  There she secured an ex parte return of all four children under wardship proceedings following a declaration that they were habitually resident here.  The court allowed the father's appeal in relation to the youngest child only as that child had never set foot in the UK.  If nothing else, this case is illustrative of how wardship can be used at least initially to secure the desired result pending a hearing21.  In such cases one needs to act quickly; if unsure about jurisdiction, originating summons may still be issued to make the child a ward of the court immediately and the issue can then be explored with the child protected.

Conclusion
In brief, following the Children Act 1989 it is clear that the use of the wardship jurisdiction has significantly declined due to the wide range of provisions and orders contained therein.  However the option of making an application for wardship should not be forgotten or discounted merely because of the infrequency with which it is used.  In emergency situations or those in which the local authority does not necessarily want a care order, it may well offer a workable and justifiable alternative where a Children Act 1989 order is incompatible.
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Footnotes

[1] See Lord Donaldson of Lymington MR in Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 at 25
[2] PD 12D FPR, para 1.3
[3] 12.36 FPR; PD 12D FPR, paras 2.1-2.3; s38(2)(b) Matrimonial and Family Proceedings Act 1984
[4] 12.3 FPR
[5] 12.3 FPR; 12.37 FPR
[6] section 41(2) Senior Courts Act 1981
[7] 12.38 FPR  
[8] 12.39 FPR
[9] 12.41 FPR
[10] Per Lord Scarman in Re E (SA) (A Minor) [1984] 1 WLR 156 at 159
[11] PD 12D FPR, para.1.3 
[12] 12.42 FPR
[13] s 100(3) Children Act 1989
[14] s 100(4) and (5) Children Act 1989
[15] At paragraph 16
[16] At paragraph 16
[17] At paragraph 26
[18] For a useful summary of the law concerning medical treatment see paragraph 17 Re KH (Medical Treatment: Advanced Care Plan) [2012] EWHC B18 (Fam) and the associated case references.
[19] See RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) [2008] EWHC 1436 (Fam),  [2008] 2 FLR 1624; Re SK [2005] 2 FLR 230.
[20] Practice Direction 12F (International Child Abduction), paras 4.4- 4.7 
[21] See also H v H (Jurisdiction to Grant Wardship) [2011] EWCA Civ 796
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17/5/13