A Spanish judge has ordered the immediate release of the Ashya King’s parents from a Spanish prison; and David Cameron has welcomed the move which reunites Ashya with his parents.
From a family law perspective, it has been reported that Ashya has been made a “ward of court” and I thought it would be useful to have a look at this and what “wardship” actually means.
The meaning and use of wardship actually goes back to medieval times. But in modern times wardship is the name given to court proceedings by which a child is made a ward of Court. In effect, the Court becomes the legal guardian of such a child; and it is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of.
The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.
But is there still a place for wardship?
Whilst the Children Act 1989 severely restricted use of the jurisdiction, despite the many years since its enactment wardship has not shrivelled up out of all existence; although sometimes it may feel like it has. It may still prove a useful tool in certain cases and we should remain alive to it.
Due to the immediate effect of wardship, the jurisdiction remains particularly useful in emergency situations such as where medical treatment is required, forced marriage is anticipated, or there has been threatened child abduction.
In cases where there are disputes concerning children with an international element, it is sometimes advisable to institute wardship proceedings for their protection. In cases where a child has been wrongfully removed from the jurisdiction and an order for return is made, it is often thought that a High Court wardship order may carry greater weight in the country to which the child has been removed than an order made under other proceedings.
It is clear that the use of the wardship jurisdiction has significantly declined because the courts have wide range of other powers. However, the option of making an application for wardship should not be forgotten or discounted merely because of the infrequency with which it is used. In emergency situations is may well offer a workable and justifiable option to protect a child.
In this particular case concerning Ashya it is important that this little boy gets the treatment and the love of his family that he needs.