This page explains the situation where the High Court can become a legal guardian for a child under the power of Wardship.
Wardship is used in exceptional circumstances to safeguard and protect a child’s welfare.
What is wardship?
Wardship is the name given to court proceedings by which a child is made a ward of court. This means that the High Court can be vested with supreme legal guardianship of a child to ensure their safety and protection. Day-to-day care and control remains with an individual or the local authority but the court’s consent is required for any important step in the child’s life. Additionally, the child cannot be removed from England and Wales without the permission of the court.
Who can apply for wardship?
- Any person ‘with a genuine interest in or relation to the child’
- The child
- The local authority (with the court’s permission)
Who can become a ward of court?
- Any child under the age of 18 who is either physically present in England and Wales or has ‘habitual residence’ in England and Wales
- An unborn child cannot be a ward of court
When might wardship be necessary?
Wardship might be necessary:
- to restrain publicity;
- to prevent an undesirable association;
- for emergency medical treatment;
- to protect a child from forced marriage;
- to protect abducted children, or children where the case has another substantial foreign element.
Practice Direction 12D of the Family Procedure Rules states that ‘such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989’.
Wardship can be used in several different situations. Wardship has been used to impose injunctions against a number of men who were engaging in the sexual exploitation of a female child. It has also been used to protect British nationals who are located outside of the jurisdiction.
When will wardship not be appropriate?
Wardship should not ordinarily be used in order to place a child under local authority care/supervision, or as a means of accommodating a child under local authority powers.
How can I apply for wardship?
The application must be issued in the High Court using form C66 with a supporting affidavit detailing the grounds for the application.
Practice Direction 12D governs wardship proceedings.
What happens once a child is made a ward of court?
Wardship is effective as soon as the court summons is issued, but lapses if a court hearing is not obtained within 21 days. The court officer will send a copy of the application to the Principal Registry to be recorded in the register of wards.
The respondent must file an Acknowledgement Of Service and file a notice stating their address and the whereabouts of the child or, if he does not know, confirm that that is the case. This must be served on the applicant unless otherwise directed and the court must be immediately notified of any changes.
Once a child is made a ward of Court the matter may remain in the High Court, or it may be transferred to a lower Court. The decision as to whether a child is to remain a ward of Court must be dealt with by the High Court.
What legal effect does wardship have?
The court obtains Parental Responsibility for the child; they share this with those who already hold Parental Responsibility but no important step can be taken without the court’s consent. The following are examples of when the court’s consent will be needed:
- significant medical or psychiatric examination and treatment of the ward;
- interview of the ward by an independent reporter or the police;
- marriage of the ward;
- change in the ward’s education, residence or whereabouts;
- the ward leaving the jurisdiction of England and Wales;
- the ward moving foster placements;
- any adoption proceedings in respect of the ward;
- changing the ward’s name.
No important step can be taken in relation to the ward without the court’s consent.
How does wardship come to an end?
- Wardship will expire when the child reaches 18.
- Wardship will be terminated if a care order is made in regard to the child.
What does case law say about the principles to be followed in wardship cases?
In London Borough of Tower Hamlets v M & Ors 2015, the High Court considered the use of wardship for young persons who were at risk of leaving the country to travel to ISIS controlled areas. The local authority applied for wardship and told the court that the police were in agreement that wardship was required. The High Court made the young persons wards of Court and granted a passport order. However, it then emerged that the police did not have time to fully consider the information from the local authority and didn’t actually believe wardship to be necessary. Wardship was immediately withdrawn and the judge held that wardship was not needed for the young persons as the situation could be managed through cooperation between the local authority, police and families.
The judge issued a number of core principles to be followed in wardship cases:
- Prior to coming to court with application for wardship, lawyers should draft (at least in outline) the scope and ambit of the orders they seek and in respect of whom they seek it.
- Thought should be given to how quickly the case can be restored on notice.
- Cases should be dealt with by senior and experienced lawyers as the issues have profound consequences and requires a delicate balancing of competing and potentially conflicting rights and interests.
- The interest of the individual child is paramount in these cases yet the decision must be made in the context of the wider canvas (i.e. counter terrorism policy or operations) so it is essential that the Court is provided with relevant material in appropriate detail.
- There must be ‘hard evidence’ of the support of the police/security forces/counter terrorism parties of the application for wardship. Verbal assurances alone will not be sufficient.
- In these cases there is a presumption for transparency in these cases as the justified interference with article 8 rights of a minor will always require public scrutiny at some point. Consideration should be given to how this will work in practice.