A ward of the court can be questioned by security services without obtaining ‘judicial consent’

posted: 30th May 2017

A court may take responsibility for the legal protection of an individual, usually either a child or incapacitated person, in which case they become known as a ward of the court. In these cases day-to-day care and control remains with a court appointed individual or the local authority but the court’s consent is required for any important step in the child’s life.

However, in the matter of a Ward of Court [2017], which came before the High Court, the President of the Family Division, Sir Munby concluded that ‘judicial consent’ is not needed for security services to question a ward of the court.

An example can be found in a teenager who was made a ward of the court. Security Services wished to question them with regard to radicalisation. The Judge examined the law relating to investigatory, enforcement or regulatory agencies fulfilling their statutory functions, in accordance with the Security Service Act 1989, with regards to wards of the court.

The court looked at two important principles – firstly that no “important” or “major” step in a ward’s life may be taken without obtaining approval of the wardship judge and secondly, the “wardship judge cannot exercise its powers however wide they may be, so to intervene on the merits in an area of concern entrusted by law to another public authority”.

The Judge therefore concluded that police officers, officers of the Security Service and those in other similar positions should follow the guidance given by Sir Stephen Brown P in Re G; Re R Note (Wards) (Police Interviews) [1990] when questioning wards of the court.

In short the guidance given was that, provided that the law is complied with when questioning minors, it is often the case that there is not enough time to seek permission from the court before questioning. There is a duty on the person taking care of the minor to notify the court of what is happening or has happened at the earliest opportunity. However, judicial consent is not required before a ward of the court can be questioned.

More On Wardship

A ward of the court is a person, usually a minor, who has a guardian appointed by the court to take responsibility for and care for them. When a child becomes a ward of the court, the court share parental responsibility for that child with whoever already holds parental responsibility. It is then necessary to get the court’s permission in respects of important decisions in the child life.

In accordance with the Family Procedure Rules, any person ‘with a genuine interest in or relation to the child’, the child or the local authority can instigate proceeding with the court’s permission. The most common situations the court may make an injunction for a child’s protection are, but are not limited to:

  1. Orders to restrain publicity;
  2. Orders to prevent an undesirable association;
  3. Orders in relation to medical treatment;
  4. Orders to protect abducted children, or children where the case has another substantial foreign element; and
  5. Order for the return of children to and from another state.

Before the introduction of the Children Act 1989, applications for wardship were more common. However proceedings for wardship should now only be instigated if the issues concerning the child cannot be resolved under the Children Act 1989. This significantly reduces the circumstances in which a person would need to make an application for a child to become a ward of the court both in Public Law proceedings (involving social services etc.) and Private Law proceedings (generally disputes between parents regarding the care or contact of their child). In Private Law matters, the need for resolution through wardship reduced with the introduction of Special Guardianship Order and other such remedies available.

However, this does not mean that wardship has become obsolete. This is demonstrated in the case of T v S (Wardship) [2011]. In this case, the parents of a child had separated but were conflicted in respect of residence and contact arrangements so the child was made a ward of the court. The mother continued to make unsubstantiated allegations against the father and the father was unable to shed any light on how his supposed behaviour was affecting the child. The child was then faced with a potentially serious physical condition. The Judge had to consider whether the wardship of the child was still required.

The Court made a detailed order of wardship for the child outlining the child was to live with the mother and spend increased time with the father. The court also made a Family Assistance Order (which provides social work support to families experiencing difficulties after separation or divorce). The Judge reserved all applications for 16 months to himself to determine whether judicial enquiry was merited. In this instance, due to continuous parental conflict all responsibility for the child had been forgotten in terms of the child being in the middle of everything and a residence order had become the priority in the parents’ minds which would not help the future care of the child. As such the court determined they should exercise such control in respects of the order and maintained wardship of the child.

It may also be appropriate to apply for wardship in emergency situations such as threatened abduction, if medical treatment is required, or forced marriage is anticipated.

Here at PMC Family Law Solicitors, our expert team of family solicitors is on hand to help you in all private family law matters. This includes children matters, divorce, financial matters and cohabitation etc. Get in contact with us today by telephone on 0151 375 9968 or email for your free initial consultation.

By: Lindsey Potter - Paralegal