Powers of the local authority to apply to the High Court
Wardship has been in the news in the last few days (Mr and Mrs King and their child Aysha: wardship proceedings are still continuing, so what is said here does not relate directly to those proceedings). Two questions arise: what is the power of the High Court to exercise its inherent wardship jurisdiction over children; and can a local authority use the High Court’s to make a child a ward.
In general the High Court has more or less infinite powers to exercise an inherent and protective jurisdiction over children. It is only the High Court which has power to deal with wardship (Senior Courts Act 1981 s 41(1)), not eg the ‘single’ family court. If it does so, the usual result will be that a child becomes a ward of court. The High Court then stands in the position of a child’s parents; but the court must ensure that someone makes practical day-to-care arrangements for the child’s care, board and lodging, and so on.
If the jurisdiction of any family court to take a child into care is to be invoked by a local authority it must be by care proceedings (Children Act 1989 Part 4) save in a very narrow range of cases sanctioned by CA 1989 s 100. (Section 100 was included in the CA 1989 since, till that Act, local authorities had been using wardship, in many cases, to obtain care orders.)
CA 1989 s 100 says that the court’s inherent jurisdiction (‘wardship’ and ‘inherent jurisdiction’ tend to be used interchangeably) cannot be used, in effect, to place a child in the care of a local authority (s 100(2)), unless the court gives the local authority permission (s 100(3)). The court may not give permission, till it finds (1) that, but for an order, the child is likely to suffer significant harm (s 100(4)(b)), and (2) that there is no other order the local authority can apply for (a 100(4)(a) and (5)).
Local authorities and wardship
Children Act 1989 s 100 provides as follows:
100 Restrictions on use of wardship jurisdiction
(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).
In Re A (Children)  UKSC 60 – http://www.bailii.org/uk/cases/UKSC/2013/60.html ; in the Supreme Court Lady Hale (also, as Brenda Hoggett, a main architect of the Children Act 1989) explained the wardship jurisdiction of the High Court. Re A related to a child born in Pakistan, the brother of children with dual British and Pakistani nationality. The question was whether he could be made a ward of the English court. The Supreme Court said that in principle he could be made a ward.
Lady Hale explained the inherent jurisdiction of the High Court by reference to ‘common law rules’ and that, in the case of a child who is a British national, the ‘Crown had a protective or parens patriae jurisdiction over the child wherever he was’. She cites Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, at 344-345, and Lord Denning MR in Re P (GE) (An Infant)  Ch 568, in support of her proposition. The fact that a child is a British national enables the court’s jurisdiction to be called upon to protect a child.
The position described by Lady Hale remains the common law position still, unless Parliament says otherwise and by statute restricts the jurisdiction of the High Court. In the case of any application by a local authority to invoke the inherent jurisdiction of the High Court to protect children, Parliament has imposed restrictions in Children Act 1989 s 100 (as above). And if application is made to the court to make a child a ward, the effect is immediate. On filing the application the child becomes a ward (Senior Courts Act 1981 41(2)); and remains so till the court makes a further order (provided this is dealt with within three weeks).