Using wardship for intractable child arrangement disputes

When two parents fall out, and use their child against each other, the court can step in and become the child’s official parents, assuming power over major decisions concerning the child’s life. Wardship may be an ancient form of proceedings, but it plays an important present-day role in child arrangements.

In 2017 the Court of Appeal dealt with a well-publicised case [Re M (Children) [2017] EWCA Civ 2164] relating to a transgender father and contact with her five children, who were from an ultra-orthodox Jewish community. In that case, the then President of the family division, Sir James Munby, set out the obligation on the court to promote the relationship between children and their non-resident parents, and to deal robustly with parents who were hostile to promoting such a relationship. He said:

Where an intransigent parent is fostering in their child a damaging view of the other parent, and thereby alienating the child from the other parent and denying contact between them, the court does not hesitate to invoke robust methods where that is required in the child’s interests. Thus, the court may make an order transferring the living arrangements (residence) from one parent to the other, either to take immediate effect or … suspended so long as the defaulting parent complies with the court’s order for contact. The court can make the child a ward of court.

Sir James Mundy, President of the family division

What is a wardship of the court?

Wardship is an ancient jurisdiction that originated with the monarch’s obligation to protect his or her subjects, especially children. When a child is made a ward of the court that child is placed under the protective care of the court and, in effect, the court acts as the child’s ultimate parent.

Lord Justice Ward in Re Z [1997] Fam 1 described it in the following terms:

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 though in practice the judges who exercise the jurisdiction have created classes of cases in which the court will not exercise its powers.

Lord Justice Ward

A child under the age of 18 can be made a ward of court. From that time, no important step in the child’s life may be taken without leave of the court. For example, the child cannot leave England and Wales without the court’s permission. Any application to make a child a ward needs to be made to the High Court. This is because the High Court exercises its inherent jurisdiction, which is its non-statutory power, through such proceedings

When is a wardship of the court applied?

In a recent case before the High Court [T (Parental Alienation) [2019] EWHC 3854 (Fam)], Barlow Robbins (now Moore Barlow) and 1 GC Family Law Chambers acted on behalf of a father who successfully achieved the transfer of living arrangements of his five-year-old daughter from her mother to himself. The court made the finding that the mother had alienated the father. In that case an application was made for the child to be made a ward on the basis that the local authority was taking no further action in respect of the family, and proceedings had been going on for some years, with little progress. The father argued that the living arrangements should be transferred immediately. Mr Justice Moor, who initially heard the case, agreed to make the child a ward.  From that point on, the case was timetabled to a conclusion fairly quickly.

What are the benefits of granting a wardship of the court?

Wardship is not a common application to make, and should only be done after careful consideration of all options, especially in child arrangement cases of intractable hostility. However, it is clear from the case of T that, despite its ancient origins, wardship still has an important function, and even more so in difficult cases of parental alienation. Its benefit is that it takes away power from the parents, with the court acting as the ultimate authority, not only in terms of jurisdiction but in respect of day-to-day decisions regarding that child. It is also important to note that child arrangement orders can be made even when the child is a ward. As in T, it is frequently the case that wardship ends at a final hearing. For those who practise in this field, such an application is a useful tool to have at hand.

How Moore Barlow can help

At Moore Barlow, our team of family law experts understands the complexities and sensitivities associated with child arrangement disputes. Whether navigating the intricacies of wardship or handling cases of parental alienation, we provide clear, compassionate, and effective legal guidance.

Co-authored by Bev Cullis and Richard Jones, Barrister, 1 GC Family Law