I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today. (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)
What is wardship?
If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)
Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)
In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority. (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)
What are the powers of Wardship?
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 Practice Direction 12 D is quite helpful in explaining Wardship
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.
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.
[You can see that (c) and (e) are pretty relevant to Aysha's case]
Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are. The Inherent Jurisdiction is more like Superman – he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time… LET IT GO, Suesspicious Minds, get over it)
And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite
What can’t be done under wardship?
When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.
s100 Children Act 1989 Restrictions on use of wardship jurisdiction.
(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.
(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—
(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.
(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
(4)The court may only grant leave if it is satisfied that—
(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b)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.
(5)This subsection applies to any order—
(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and
(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
(i) The Court can’t use wardship to put a child in the care of the Local Authority. That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met. [For Aysha's case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]
(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion” – if there’s a wardship order, the High Court have to make the individual decisions
(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)
Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY. [There's an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8's "necessary" test and says that for those purposes he adopts Lady Hale's formulation of "nothing else will do" - that doesn't seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]
Who can apply for wardship?
As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989 (Emergency Protection Order, Interim Care Order, Recovery Order)
They can also be issued by a connected person, generally a parent – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.
Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.
It is theoretically possible that the police could apply, but I’ve never come across such a case. They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.
When does wardship run out?
It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.
What about getting free legal advice?
This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire (non means) or even if someone looking at the case would think that their argument is poor (non merits)
The next tier of public funding is those matters set out in Schedule 1 of LASPO http://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.
Eep. What now?
Well, the final tier is Exceptional funding under s11 of LASPO. If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights. Hardly ANY of these have been granted.
In the last year, of 821 applications, 8 were granted. And only 4 for family cases.
Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested. What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.
(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital. It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)
What are your options if you CAN’T get free legal advice?
You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.
You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.
You could contact the bar pro bono unit (there are lawyers who will represent you for free. http://www.barprobono.org.uk/
Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs” – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.