Wardship: a powerful tool and a cloak of protection

The term ‘wardship’ refers to cases where a child has been made a ward of court. It is a powerful legal tool which allows the High Court to be appointed as the legal guardian of a child, to ensure their welfare and protection. It is used in the most exceptional circumstances, as a means of safeguarding children.

What does it mean?

As a consequence of children being made a ward of the court, the question arises – what does this mean? Ultimately, once an application is made to make a child a ward of the court, that child is under the continuous protection of the High Court of England and Wales. When exercising that jurisdiction, the judges of the Family Division of the High Court are exercising a jurisdiction that has existed for centuries, since medieval times. Its existence stems from the duty of the crown to protect its subjects, particularly children. Whilst the use of this jurisdiction has changed over time, and the majority of its use now falls within statute in the form of the Children Act 1989, it remains available for use by judges in appropriate situations. It is a tool often utilised in the most serious cases relating to child protection, for example where a child is abducted or is unsafe for whatever reason.

Once a child is made a ward of court, no important step can be taken in the child’s life without the court’s consent and the court will oversee any such step that anyone (be that a parent or a social worker employed by a local authority) suggests must be made. For example, the child’s place of residence, schooling, or any decision relating to the child’s welfare cannot be taken without the court’s approval. In Re Z (A Minor) (Identification: Restrictions on Publication) (a case decided in 1995), Lord Justice Ward described the jurisdiction as follows: “The wardship or inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory …”

In what circumstances is a child made a ward of court?

Family law disputes are wide ranging and in the most serious of cases concerning children, wardship may become appropriate. Wardship is often utilised in cases of child abduction, where a child may be taken to a jurisdiction that does not respect or have any mutual treaty with England and Wales. Making a child a ward of court is a mechanism to enable a clear message to be sent to anyone who is directly involved with the children, including courts and authorities in other jurisdictions, that the English court is ultimately responsible for the child. It can be a persuasive tool in persuading oversees authorities and courts to respect the English jurisdiction and to return a child back to England, not because a parent or a local authority wants it, but because the courts of England and Wales demands it.

For example, if a child travels overseas with family and is forced into a marriage while abroad, the High Court can respond by making an order which gives it ultimate responsibility over the child. This, therefore, means the court can make all decisions concerning the child and ensure that they are protected once they return back to the UK.

There are situations, nonetheless, where wardship is not necessarily the right option. Having a child a ward of the court does not invest the High Court with any unique power, in fact – the real power of the High Court comes through the inherent jurisdiction. The power of the inherent jurisdiction is regarded as boundless, albeit the courts have, through years of case law, found it necessary to impose limits on it. The inherent jurisdiction enables the High Court to make powerful orders to trace, locate, and restrict the movements of children and parents.