The case of the seriously ill 5 year old boy Aysha King has been all over the news this week. From a family law perspective the case is interesting as, on 1st September 2014, Aysha was made a ward of court on an application to the High Court by Portsmouth City Council children’s services.
The legal concept of wardship is hundreds of years old. It is the power of the sovereign state to act to protect vulnerable citizens by taking direct control over the administration of their affairs. It usually applies to children but any vulnerable citizen can be made a ward of court.
Applications for wardship are made to the High Court under its inherent jurisdiction. Inherent jurisdiction is an ancient doctrine of English law which gives the High Court the right to hear any matter that comes before it, unless statute law or some other rule states otherwise. Once an application for wardship has been made, the case is usually to the Family Court.
An early definition of wardship is “the right of custody of an infant heir of a feudal tenant and of the heir’s property”. Wardship gave a guardian a right to control a wealthy infant’s financial affairs until they came of age. This definition is the type of wardship we associate with Dickens novels.
As time passed wardship became more concerned with welfare issues and particularly the protection of children. In 1857 wardship was extended to cover children affected by divorce.
It is now the duty of local authorities to protect vulnerable people in their area. It is therefore usually (but not exclusively) local authorities who apply to the court for wardship. Once a person is made a ward of court, the court takes over ultimate responsibility for them. In the case of a child, the court shares parental responsibility with the parents but has the ultimate say in major decisions affecting the child’s life.
Wardship is rarely used these days. This is due to the Children Act 1989 which was a comprehensive overhaul of the law relating to children. An application for wardship can only now be made in circumstances where the Children Act does not apply. The court rules set out clearly the type of situations in which an application for wardship can be made. These are:
a) orders to restrain publicity;
b) orders to prevent an undesirable association;
c) orders relating medical treatment;
d) orders to protect abducted children, or children where the case has a substantial foreign element; and
e) orders for the return of children to and from another state.
It is clear from the rules that wardship applies, for the most part, to situations in which the court has to take control and make a decision quickly. In Aysha’s case the wardship order allows the court to make an urgent decision about his return to the UK and his medical treatment.
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