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What is wardship?

 

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)

 

{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}

 

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

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12d
1.1
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.
1.2
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).

 

 

English please?

 

(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 s10* 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.

http://www.familylaw.co.uk/news_and_comment/four-family-law-applications-for-exceptional-case-funding-have-been-granted-between-april-and-june-2014#.VAXrAGOgktV

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.

 

 

 

*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

19 responses

  1. Great – but legal aid is LASPOA 2012 s 10 (exceptional cases determination); and is it worth saying that (a) tricky to get wardship if a child is already in care and (b) the child becomes a ward the minute the application is issued.

  2. Ashamedtobebritish

    1.1 was a non starter then, where exactly has there been any protection for this child, who is being kept away from the family he desperately needs around him?
    That in itself is child cruelty, Ashya must be so distressed, and what is the biggest factor in cancer? Stress.

    Thanks for the ins and outs of ward ship though (even if I do think it should be ceremonially burnt, along with the other 140,000 people who signed the petition for reunification for this family, which was presented to Downing Street today by a 16 year old who has more sense and morals than all the decision makers put together!)

  3. Could some please answer what happened before wardship? i am thinking about the 60’s and before when children were routinely taken for adoption or into children’s homes if the mother was unfortunate enough to be unmarried. It has had a life long effect on several people I know both who were forced into giving children up without going to court and those adopted. Was it legal then to just take children?
    On this case if it was not so high profile and with the transparency agenda. I am sure Ashya would have been subject of care proceedings just a couple of years ago. Hats off to the reformers.

    • There have been child protection and adoption acts around since the latter part of the 19th century. Some of those would apply very grisly and dreadful to modern eyes. (which is a point that campaigners make about our current laws, that they are going to reveal themselves to be an outmoded and outdated way of thinking)

      I’ve seen old fashioned Wardship cases – I came into law just after Place of Safety and wardship as routes into care had just stopped, but I did often have to look at the old cases; and rather than the current mass of information and evidence including responses from parents, there’s often just ten/twelve pages in old Wardship cases, it seemed to be not much more than just “ask and ye shall receive”

      If you want, I can try to look for the adoption act that would have been in force in the 1960s.

  4. Pingback: No Surprises There Then / Pink Tape

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  6. A quick addendum / postscript. It emerges that the Wardship order was made on Friday of last week (i.e when the news reports were still of the ‘this child might die if not found soon’ flavour and before the Youtube videos and backlash)

    The applicant was the Local Authority, which means that the test that there must be reasonable grounds to believe that the child would be likely to suffer significant harm if wardship were not made, was in force and was valid.

    There OUGHT to be a judgment in relation to the judicial decision to grant Wardship on Friday 29th August, and in light of transparency, the sooner that is produced the better.

    The wardship order, which is available and published, http://www.judiciary.gov.uk/wp-content/uploads/2014/09/king.pdf

    compels the parents to take their child to the nearest hospital (which they had done) and not to remove the child from the hospital (which they don’t seem to have wished to do), to cooperate with medical professionals (which they have done) and to return the child to the UK once the medics say it is safe to do so (which they haven’t been able to do due to being arrested)

    The cautious/sceptical/challenging will note that the order makes the applicant file a statement by 3rd September (suggesting that there was little in the way of written evidence before the Court on 29th September)

    So, what will happen on Monday? A few things are possible

    (a) Consideration of whether wardship is still needed

    (b) Whether the Court wants Aysha returned to the UK, which will depend in part on

    (c) Whether the Court needs to make an order under the wardship as to the sort of medical treatment Aysha should receive and where (or, whether there is no need for the Court to take control away from the parents if the parents are exercising their parental responsibility properly)

    The arrest, and separation of Aysha from his parents is probably the more serious element. The wardship order was not envisaging that (and indeed doesn’t have the power to do so). There isn’t really anything in the order of 29th August that the parents weren’t doing anyway and was probably a sensible holding position to ensure that Aysha was safe and well whilst professionals had conversations with the parents.

    The real issue in this case was that SOMEONE formed the view that Aysha’s life was in imminent danger (all of that stuff about the feeds and the battery running out on the feeding tube) and as a result, very serious Court orders were sought and obtained. We know now that this was not the case, the parents had taken the proper precautions and steps to keep Aysha safe and well and that was their major motivation in leaving the UK. So the question is, was there legitimate evidence to consider that risk valid last week, or was the ‘worst possible scenario’ inflated into the most likely outcome?

    • Ashamedtobebritish

      This is where the system fails grossly. Two perfectly normal loving parents have suddenly got an arrest for (? Who knows what the charge was, child neglect I believe) on the say so of that someone, who I suspect is an angry doctor who had his nose put out of joint, the judge has allowed these people a blot on their crb, other children to be apart from their parents, a very sick child isolate from his family, without knowing any facts on the situation.
      No one broke the law, no one deserved this, but our wonderful justice system went ahead and tried to destroy an entire family, for what?
      The Kings would be crazy to return to the uk and I’ve told them this myself, this won’t end here, the local authority will hound them relentlessly because they will never accept this was the wrong route to take, the children won’t be in school, there’s a good excuse to have social services tear round there mob handed with several squad cars following, in order to remove the other children. I hope you can all see how easily children are stolen by the state now, the kings have done an amazing service for the potential victims of such injustices by simply recording and displaying evidence of blatant lies that could have and still may end up in child care proceedings! The world has woken up to the practise of victimising those who exercise their art 8.
      Whoever went for that order should be jailed, along with the rubber stamping judge – not only did they not perform a finding of facts, they wasted tax payers money, they lied on oath, wasted police time and resources and caused unnecessary distress.
      What happened to:
      No punishment without crime
      No torture
      Misconduct in public office
      Misfeasance
      Statutory breach of duty
      The rules of natural justice

      I could go on, but above all – some common sense! Now is the time for change and sharpish

    • I am struggling to understand why agencies acted in such an authoritarian way and allowed this situation to spiral out of control.

      Doctors seemed to assume they had powers to do whatever they considered in the ‘best interest’ of the child. However, by contacting the police they turned caring, well-informed parents into fugitives on the run.

      On the use of Wardship I note: ‘Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.’

      I would have thought the Children Act 1989 should have been much more central to decision-making – with its underlying principles of minimal intervention and partnership working. Wardship only became necessary because the parents had taken fright and and the actions of police and CPS had destroyed any possibility of resolving matters outside court. It would be interesting to know whether social workers had made any attempt to challenge the authoritarian tendency of doctors and considered whether the case should have been handled initially as an urgent section 47 investigation.

      • I suppose the critical point in all of this was the moment where trust and cooperation and conversation between the medics and the parents broke down.

        We may never find out why and how that happened, but that seems to me the point at which the medics stopped having key pieces of information (that the parents had got a hospital to go to, that they had bought food and batteries, that they were fleeing in order to GET treatment, not to avoid it) and as a result of that lack of information, decisions were made and applications to Court followed. [I’m not pointing any fingers at whose fault that was, just that it was the cessation of dialogue for whatever reason that escalated things so drastically]

        I suspect that we will probably in time find out that by the time the hospital were involving social workers, that point had already gone and the parents had left.

        I wholeheartedly agree with you though – a lot of this could have been resolved if there had been a collaborative working conversation.

      • The Guardian’s timeline is quite helpful (although it needs updating now) – for example it stops on Monday morning last week, so misses out a LOT since then, and it doesn’t include (because it wasn’t known at the time) that the LA obtained a wardship order on Friday 29th August.

        http://www.theguardian.com/society/2014/sep/01/ashya-king-timeline

      • In this case I see nothing wrong with finger-pointing! The actions of other agencies were predicated by the decision of the hospital to contact the police. This authoritarian response reflects the arrogance of the medical profession – which many ordinary people have come up against and feel strongly about.

        I shall never forget the patronising attitude of the hospital in relation to my aged mother, plus the lack of caring. Doctors seemed incapable of recognising that patients (and their relatives) may know more than they do. They need to be challenged. I note that the Spanish lawyer of the Kings said they would bring legal action against the doctors on the grounds that they misrepresented them. The medical profession is so resistant to change that a legal challenge might be useful in bringing them down to size.

  7. Thank you for your reply pre wardship. I am talking about mothers who were just had their children taken away without ever going to court. The Social services simply told them that they had no choice. I take it this was unlawful? Unless was it permissible then for the father only to sign? I am sorry I am asking a lot of questions but I would love to clear this up to help some people affected. It the same scenario really as in the film “Philomena”, brilliant at depicting the pain of both child and mother, but took place in the UK pre the end of the 60’s
    Thanks very much.

    • Ashamedtobebritish

      Children being taken away without the parents going to court, still happens to this day.
      I think the human rights act and the fact that parents are aware of it has helped a little.

    • I think the law has gone through a number of changes – there was certainly a time when unmarried mothers were basically given a choice between giving up their child or being committed for insanity (because at that time, only someone who was insane would decide to be an unmarried mother). There probably were also times when mothers were pressed very hard to consent to adoption (a consent under huge duress isn’t really consent) as in the “forced adoption” scandal in Australia.

      This link might be interesting – it appears from that the first formal adoption system in England was 1926 http://www.history.ac.uk/reviews/review/806

      The House of Parliament history on adoption is similar http://www.publications.parliament.uk/pa/ld201213/ldselect/ldadopt/127/12705.htm

      Interesting that in 1968 adoptions were running at 25,000 per year and are much much lower now – the 1968 figure is about 500% higher than today’s levels (I think there’s probably some interesting research to be done there about whether there’s a correlation between adoption rates and freely available contraception within a woman’s control)

  8. Thanks for that . The figures are very illuminating. I did not realise so so few children were adopted or that children could be taken into care for a parent having insufficient income.
    I am sure you are right about contraception, I would also suspect the change in values regarding unmarried mothers has had a huge impact.

    • Hi Freda, the income thing is a huge issue and I probably don’t have space or time for it here. Poverty is probably an underlying cause for child neglect, but there are plenty of financially impoverished parents who do not neglect their children and love them and look after them well. So financial circumstances alone should not be a reason for a child coming into care; but it is an awful lot easier for a parent on £50,000 a year to ensure that their child has clothes suitable for the season, fresh fruit and veg, that the electricity never runs out, that the house isn’t cold, than it is for a parent on benefits. The choices one has to make about how to spend money get more difficult when there is less money to start with, and the stakes of making a bad decision about it become much higher when you’ve got very little room for maneouvre.

      Thank you for sparking that discussion, the history of adoption and child protection does deserve a piece all of its own really. (We had a peculiar period of time where there were laws that allowed the RSPCA to go into a home and remove a dog who was being mistreated but were powerless about the child who was in similar situation. That was really the prompt for child protection laws)

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