Wardship: when nothing else will do

Family Law|January 18th 2016

When I began practising as a family lawyer back in the 1980s wardship proceedings were still quite common. In particular, they were then often used by local authorities as a means of protecting children from abuse and neglect. All that changed with the Children Act 1989 which, whilst not doing away with wardship, relegated it to something that would be much more rarely used, by preventing local authorities from using it when they wanted to take a child into their care.

Before I go any further I should, for the benefit of those readers who don’t know, briefly explain exactly what wardship is. Wardship is part of the High Court’s ‘inherent jurisdiction’ (a term you come across from time to time, which basically means a ‘catch all’ jurisdiction of the High Court to deal with any matter that comes before it, one that is not specifically covered by some statute or rule). It effectively enables the court to become the legal guardian of the child. It does this by enabling a High Court judge to make decisions about what is best for the child, and by requiring that no significant steps be taken in relation to the child without the approval of the court, while the child remains a ward.

As I said above, wardship is now quite an uncommon bird, with the vast majority of children cases being dealt with by the court using the powers given to it under the Children Act, such as child arrangements orders. However, there are still rare circumstances in which wardship is considered to be the best way forward for a child. One such circumstance occurred in the recent case Re S (Wardship).

Re S concerned a 12 year old boy, ‘J’, of Polish origin. J’s circumstances are really quite sad. He was originally brought up in Poland, but at some point his parents separated and in 2010 his mother brought him to the UK. His father remains in Poland but, for reasons that are not clear, J has become estranged from his father. Unfortunately, in July 2013 J’s mother suffered a subdural haemorrhage and cerebral infarction, as a result of which she now lacks the capacity to look after J, and her life expectancy may be reduced. J is now essentially looked after by his mother’s partner, L, but L entered the UK illegally in about 2001 and is currently at the risk of deportation.

When the case went before Her Honour Judge Carol Atkinson in the East London Family Court on 4 of January, there were three applications before her: an application by L for a child arrangements order (which would have the effect of giving him parental responsibility for J), an application by the local authority for a care order (an interim care order was made last July) and an application by J’s Guardian to make J a Ward of court. Having investigated the case, the local authority wished to withdraw its application. Judge Atkinson had to decide in what form the proceedings should continue.

Judge Atkinson found that currently J’s welfare demands that he should remain where he can be with his mother. Having regard to this fact, the case hinged upon three ‘fundamental uncertainties’:

  1. The uncertainty surrounding the present arrangement whereby J is looked after by L, given the problems that L has with his immigration status.
  2. The uncertainty surrounding the mother’s prognosis, and whether she will be able to continue being cared for (by L) in the home.
  3. The uncertainty concerning L’s future relationship with his father, which would be particularly relevant should J lose his mother (or, indeed, if L can no longer look after him).

In the light of these uncertainties Judge Atkinson found that a child arrangements order in favour of L (even with a supervision order in favour of the local authority) would not be suitable. Such an order would effectively be a final order, whereas, for the time being at least, the uncertainties mean that no such final order would be appropriate. Instead, what was required was that the court should continue to oversee the case (for the time being leaving the arrangements as they are, with the continued involvement of the local authority) and respond to events as they happen. Accordingly, Judge Atkinson was satisfied that in these unusual circumstances the only way in which she could safeguard J’s future was by making him a ward of court.

The full report of Re S (Wardship) can be read here.

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