Monday, 13 May 2013

Wardship in the Family Courts

This post looks at the court's powers to make children wards of court, and at a recent example of how those powers can be misunderstood.

A Brief History of Wardship

Wardship. What's it all about? The history is long, but in short wardship is the result of the court's exercise of its inherent jurisdiction (exercising the powers of the Sovereign as parens patriae) to act to protect vulnerable citizens, normally meaning children, by taking direct control over the administration of the person's affairs.

That sounds pretty serious, and it is. Historically, the main reason for making a child a ward of the court was in the event that he or she had been orphaned and there was substantial property or other wealth to administer. In 1857, this power was extended by statute to cover children affected by divorce, though the connection between wardship and wealth remained.

As time passed, the emphasis shifted increasingly towards welfare and the protection generally of the child's interests in various ways. This power was not always exercised benevolently by those applying to have the child made a ward. The primary effect of wardship was to stop any significant decision about the child's upbringing being made without the court's permission, and parents started drawing on this power to control their (nearly adult) children. In particular, it was not unheard of for a parent to have their child made a ward of court in order to stop him or, more commonly, her from marrying against the parent's wishes. (The court's jurisdiction ran until the child's majority, then aged 21.)

The pattern of cases changed in the mid to late twentieth century, with wardship increasingly used by local authorities as a means of protecting children from abuse and neglect. By the time that the Children Act 1989 entered force, more than half of all wardship applications were being brought by local authorities for this purpose. One criticism of the pre-Children Act approach was that it created a two-tier system of child protection: the 'Rolls Royce' wardship system for the wealthy, and the normal system for the rest. In particular, since orders in wardship are available only from judges of the High Court (or those county court judges with the same powers), it was rather harder to get a child made a ward of court outside London than it was for those with ready access to the Royal Courts of Justice.

Wardship After 1989

One major effect of the 1989 Act was to place major limitations on the power of local authorities to use wardship in this way (see section 100). For all its express and implied limitations, though, the Children Act did not abolish wardship, either for child protection matters or in disputes between parents about their child's upbringing. Nonetheless, the Court of Appeal noted in 1991 that judges should 'permit recourse to wardship only when it becomes apparent that the child's welfare demands it and there is no other available remedy'.

So in practice, what are the on-going uses of wardship? Nigel Lowe points to uses both by local authorities in (quasi-) child protection proceedings and by parents and others concerned about children's upbringing.

As to local authorities, while the Children Act prevents them from applying for wardship when what they want is a care order taking the child into their care, they can use the jurisdiction for other purposes. There are examples of wardship being used to protect children who are in voluntary local authority care (where no care order is needed), and cases where wardship has been used to help get a child returned to the UK after removal abroad.

Indeed, this latter example is, I think, the most common use of wardship now - either a child has been unlawfully removed from the jurisdiction or he or she has been unlawfully retained abroad following what was, initially, a lawful visit. In many cases, wardship is not needed because the law has other remedies under international conventions - but when the child is in a country which does not ascribe to such a Convention, wardship can be a potent tool for persuading foreign courts to return the child. Similarly, children are sometimes made wards of court as pre-emptive protective measures where a parent or other family member proposes to take them on a temporary visit abroad, as a means of trying to ensure that the children are returned promptly as agreed.

Recent Oddities

So why am I writing about this now? Well, twice in the last few months I have been told by barrister colleagues rather surprising stories about recent uses of wardship. One was a passing story about an order in wardship being made by a District Judge, which seems rather surprising since there is no power whatever for a DJ to exercise the powers of the High Court. The other I was told by someone at the Family Law Bar Association conference this last weekend. This second case was quite complex. I should say that I report it here as I was told it by one of the barristers involved (subject to certain changes to ensure anonymity) and I have no independent verification of these events. Nonetheless, the case may be of interest.

The child was the subject of investigation by the local authority because of concerns about his well-being with his parents. At the first hearing, the county court judge announced that he was 'deeming' the local authority to have applied for an order in wardship for the child (though they had done no such thing) and then made the order accordingly. Since the local authority was in the process of starting proceedings for a care order, this order was in direct breach of s 100 of the Children Act. What's more, since the judge was not sitting as a judge of the High Court, he had no power in any event to make such an order.

The story continues, however. At a subsequent hearing, it was reported to the judge that the child had already, before the first hearing, been unlawfully removed from the UK to India (which is not a signatory of the relevant international conventions). Ordinarily, this might therefore have been a good time to use wardship, as a means of trying to get the child back. However, that was not how matters proceeded. On learning that the child had not been in the country when the original purported wardship order had been made, the judge held that he had had no power to make it in the first place, declared that there was nothing more to be done, and dismissed the case.

Well, it is sort of true that the judge had not had the power to make the original order, but the reason was nothing to do with the child's absence from the jurisdiction. One of the advantages of wardship is, indeed, that it does not rely on the physical presence of the child for it to be invoked - if it did, it would be a fairly useless anti-abduction measure! So the fact that the child was gone was, in fact, all the more reason to need an order in wardship. So what we have here is a screw up at two stages - first as to the making of the order in completely inappropriate circumstances, and then as to its discharge once it became apparent that it was actually needed! Oh dear.

Perhaps time for some refresher courses on wardship...

I draw in this post on Stephen Cretney's book Family Law in the Twentieth Century: A History (OUP, 2005) pp 583-592 and Nigel Lowe's chapter Inherently Disposed to Protect Children: The Continuing Role of Wardship in R Probert and C Barton (eds) Fifty Years in Family Law (Intersentia, 2012).