Wardship of the Court
- What is wardship?
- What powers does the court obtain after making a child a ward of court?
- Who can become a ward of court?
- Who can apply for Wardship?
- When does a wardship cease to exist?
- What are the most common situations where a child may be made a ward of court?
- How can I apply for a child to be made a Ward of Court?
- What happens once wardship is arranged?
- Are there any restrictions to a wardship being enforced?
- Getting Wardship where Child is stranded outside of the UK with difficulty in returning
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Wardship of the Court relates to the Court exercising it’s duty over a child. The courts in England and Wales are under a duty to protect the interests of a child. This is more necessary where children have been removed from their parents, become vulnerable, are in danger or even where children are considered to be at some form of risk. The duty of the court extends from ensuring the safety and the welfare of the children to protect children and ensure they are properly taken care of.
What is wardship?
Wardship is where a child is made a ward of court through court proceedings. Wardship is not so common since the Children Act 1989 was introduced. The Children Act 1989 is the law relating to children. The purpose of this legislation is to ensure children are protected from being exploited and abuse and to ensure the safeguard of the welfare of children. The central purpose of a wardship is to ensure that children are adequately looked after, maintained, and cared for within their family setting. Making a child a ward of court provides the court supreme legal guardianship of a child.
Through a wardship the courts will obtain parental responsibility for the subject children. The courts parental responsibility will be shared by existing parental responsibility holders such as the parents, step parents, local authority or any other individual who has acquired parental responsibility over the children. The purpose of a wardship is to ensure the safety and protection of the children in question.
What powers does the court obtain after making a child a ward of court?
Through a wardship the court will have the legal responsibility over a child. By making a child a ward of court no orders concerning a child can be made, and neither can any action be taken which would affect the child unless ordered by the court or the courts permission is sought. This effectively means that the day-to-day care and control of the child would remain with the parents, the local authority or any person with parental responsibility but the courts permission and consent would be required before any important step concerning a child is to be taken. Furthermore, the courts prevent a child from being taken away from the jurisdiction of England and Wales without the courts consent and permission.
Who can become a ward of court?
A child aged under the age of 18 can be made a ward of court. A wardship will only apply to children who are British citizens and are physically present in England and Wales or who have habitual residence in England or Wales. To satisfy that a child has habitual residence in England and Wales means they have lived here regularly. A child would remain habitually resident in England and Wales if they have lived in this country all their life even if they travelled abroad for a holiday for a period of several months or moved away temporarily. It is important to note that despite children’s services becoming involved with a child before their birth an unborn child cannot be made a ward of court. Any applications to the family courts can only be made once a child is born.
Who can apply for Wardship?
An application to bring a person into wardship is commonly made by a parent of a child or a family member. This includes any person who has a genuine interest or relation to a child which covers immediate family members and other professionals such as teachers and medical practitioners. A child themselves can also apply for wardship or even the Local Authority provided they have the permission from the court. For the local authority to apply for wardship they must be able to satisfy the court that there is a reasonable cause to believe that their failure in making an application for a wardship is likely to cause significant harm to the child.
When does a wardship cease to exist?
A child will no longer be a ward of court when they attain the age of 18 years or if a care order is in put in place for the subject child. Section 91 (4) of the children Act 1989 clearly states that where a care order is made in respect to a child who is a ward of court the wardship will come to an end.
What are the most common situations where a child may be made a ward of court?
A wardship can be considered to protect a child. The Practice Direction 12D of the FPR (Family Procedure Rules) and more specifically paragraph 1.2 outlines the following situations and injunctions for a child’s protection:
- Orders to restrain publicity.
- Orders to prevent an undesirable association.
- Orders relating to medical treatment.
- Orders to protect abducted children, or cases where there is substantial foreign element; and
- Orders for the return of children to and from another state.
How can I apply for a child to be made a Ward of Court?
An application for a wardship is made using the form C66. This is an application for inherent jurisdiction order in relation children. The application for a child to be made a ward of court must be made to the High Court. Grounds of the application for wardship must be detailed within the form.
What happens once wardship is arranged?
Once the court has issued its summons wardship becomes effective immediately. However, the summons lapse if a court hearing is not obtained with 21 days of the summons being issued. The court officer will be required to send the documentation and the application to the Principal Registry. The wardship is then recorded and registered in the register of wards.
The Respondent in the cases of wardship is usually one of the parents, a guardian or any person with an interest in or relationship of the child. The Respondent in the application for wardship will be required to file an acknowledgement of service. The Respondent must also file a notice confirming their address and the location of the child in question. If the Respondent is not aware of the address or the whereabouts of the child, then this must be stated on the notice filed by the Respondent.
The Respondents acknowledgement of service together with the notice must be served upon the applicant and the court must be immediately notified where any changes take place. If at the time of the hearing the High Court does not confirm the wardship it will be considered as being lapsed.
Are there any restrictions to a wardship being enforced?
Before making a child a ward of the court, the court must be satisfied that the matters and issues relating to a child cannot be dealt with by way of the Children Act 2989 before a wardship is arranged. Prior to the Children Act 1989 wardships would have been the only action available for local authorities or other family members and relatives where they were unable to initiate proceedings. However, as the Children Act 109 is purely child focused, it has restricted the use of wardship. The Children Act 2989 provides a statutory scheme which deals with most issues where previously only wardship would have been the viable option.
Furthermore, the courts cannot use wardship to place a child into the care of the Local Authority, as this would enable judges to put children in care where the criteria for care orders have not been satisfied. The courts can also not grant wardship and delegate the decision-making process to the Local Authority. When using wardship the High court must make the individual decisions and not any other body. Finally, the courts must not use wardship where the outcome could be obtained through any other provision of the Children Act 1989.
Getting Wardship where Child is stranded outside of the UK with difficulty in returning
A wardship may be obtained in cases of where a child is stranded outside of the UK and there is difficulty in the child returning. Quite often we hear about cases where one person has removed the child out of the jurisdiction leaving a child stranded abroad. This can be seen in the case of MB v GK & Ors (No2) Wardship (Welfare). The case concerned wardship proceedings which concerned a child who was aged 3 years at the time.
In this case the father absconded from London to return to Singapore. The father was a national of Singapore. The mother was a Mongolian national however lived in London. The child was retained in Singapore with the paternal grandparents without the wishes and consent of the mother. The child remained a ward of court throughout the proceedings.
The father argued that the child is settled in Singapore having been in the care of his paternal grandparents since 2013. The father also argued the return of the child to London would expose the child to psychological harm. The father was seeking to rely on the fact that the child had no real contact with the mother for the last 2 years.
The mother was of the view that the child should be returned to London to continue living with her. The case was contested for over a period of 2 years and was heard in the High Court. Surprisingly neither the father nor the paternal grandparents took part in the proceedings.
The court reached a conclusion that it was in the child’s best interests to return to London in the mother’s care. The court found no evidence of any physical or psychological risk if the child were to return to the care of the mother. The courts rejected the father and paternal grandparents’ position which was to seek to portray the mother as negligent and uncaring.
In summary the court continued the wardship of the child whilst prohibiting the father or anyone else from removing the child from the jurisdiction.
What to consider when making a wardship application
It is quite important that you obtain legal advice and assistance when making an application to make a child a ward of court. Cases concerning a wardship are often very complex in nature. In the case of London Borough of Tower Hamlets v M & Others the judge outlined the following principles which are important:
- Lawyers should draft orders sought before coming to court;
- Thought should be given from the outset as to how quickly an on notice hearing is listed;
- The cases require senior and experienced lawyers;
- The interests of the child are paramount and wider public policy considerations do not eclipse that but provide the wider canvas. The court must have full details of the wider context of the case;
- Verbal assurances that police (or any other service) are aware of /support the application are not sufficient. There must be hard evidence, capable of scrutiny, before the court. This may be a sworn statement, the attendance of a police officer or a secure telephone or video link;
- A co-ordinated strategy, an ongoing dialogue and respect between different safeguarding agencies are crucial.
The case concerned the wardship of young persons who were at risk of travelling to ISIS controlled areas and leaving the country. A Wardship application was commenced by the Local Authority and had argued the police agreed that wardship was required. The High Court noted the police did not have time to carefully consider the local authority information and in fact did not believe wardship was necessary. The High Court immediately withdrew the wardship and held that the situation could be managed without wardship by co-operation between the authority, the police and the families.
The case outlines the complex nature of wardship applications and therefore legal assistance should be sought to ensure your entitlement and the likely prospects of success in your application.
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Do provisions of Human Rights apply to wardship?
Despite the legislation on wardship not referring to Human Rights, it is important to note that the provisions of the Human Rights Act apply to cases of wardship. The most common provisions which are applicable when making a child a ward of court is Article 6 which the right to a fair trial and Article 8 which is the right to a private and family life. This means that wardship can only be granted where it is proportionate and necessary.
Contact Kabir Family Law today for a free initial consultation
If your child has been made a ward of court, or if you are a concerned parent looking to make a wardship application then contact our family lawyers today. Our family lawyers in Northampton as well as across Newcastle, Northampton, Oxford and London can assist you to ensure you fully understand the principles of wardship and consider whether the outcome you require can be achieved through alternative means. We provide family law advice nationally as well as internationally through telephone, email and Skype. We will also ensure you are kept up to date with you matter and assist you developing a strategy to help you succeed. Contact us today for a free initial consultation by calling on 0330 094 5880 to discuss your options or let us call you back.