![FD25P00127/ZC25C50084 - [2025] EWHC 2040 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Legal Position
Legal Position
It is important to briefly chart the legal position. Section 31 (2) of the 1989 Act sets out the well-known ‘threshold’ for the making of a care or supervision order. Section 31 (3) prohibits the making of a care or supervision order in respect of a child who has turned seventeen. In theory, at least, it is not necessary to make findings of fact to make a welfare decision in wardship. The court may conduct a welfare analysis with ZE’s welfare as my paramount consideration. The disputed issues in these proceedings are, namely: (i) should ZE live with his mother or his father; and (ii) should he live with his father should he spend unsupervised time with his mother.
It is a curiosity of wardship, that a child is immediately warded upon the court issuing a C66 application for wardship – see section 41 (2) Senior Courts Act 1981, unless the child is in care. This counterintuitive position is confirmed by Ormrod LJ (with the agreement of Dunn LJ) in Re R (Minors (Wardship: Jurisdiction) (1981) 2 FLR 416 at paragraph 6.
Poole J continued ZE’s wardship when the matter came before him. Wardship is the parental jurisdiction of the High Court. Ultimate responsibility for the child rests with the court. The court remains in control of the child and no major steps can be taken in the life of the child without order of the court. Wardship and the inherent jurisdiction of the High Court are now for all practical purposes synonymous.
Practice Direction 12 D summarises the Inherent Jurisdiction at paragraphs 1.1 to 1.3:
“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 court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Case law establishes that such proceedings should only be commenced exceptionally where it is clear that the issues concerning the child should not be resolved under the Children Act 1989, for example, for reasons of urgency, of complexity or of the need for particular judicial expertise in the determination of a cross-border issue. For a review of the relevant case law and principles, see In the matter of NY (A Child) [2019] UKSC 49.
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 –
orders to restrain publicity;
orders to prevent an undesirable association;
orders relating to medical treatment;
orders to protect abducted children, or children where the case has another substantial foreign element; and
orders for the return of children to and from another state.
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
custody of a child who is a ward is vested in the court; and
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.”
A Practice Direction contains guidance. If it contains an incorrect statement of law, then this is not authoritative, see Brooke LJ in U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657 at paragraph 48.
I have received no submissions on the legal background because it has been assumed I can make a residence decision for ZE. I have a little hesitation in proceeding given that it could be said (although it has not been submitted in these proceedings) that I am, in effect, undermining the prohibition set out in section 31 (3) by resorting to wardship to make orders. And that I am doing so without having to cross threshold. I remind myself, as is well known, that if Parliament has set out a statutory scheme this must be followed without recourse to the court’s Inherent Jurisdiction. Lord Hailsham LC in Richards v Richards [1984] AC 174 at 199 held:
“… where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus choose to apply a different jurisprudence from that which the Act prescribes.”
The text of the last sentence of paragraph 1.1 of PD12D came about following Lord Wilson’s review of the earlier text of the Practice Direction, which he held had incorrectly stated that Inherent Jurisdiction proceedings should only be commenced if the issue cannot be resolved under the 1989 Act – see NY (A Child) [2019] UKSC 49 at paragraph 44. The current iteration of the Practice Direction provides, therefore, for a wider role of the Inherent Jurisdiction. The parties in these proceedings agree that the court cannot make a care order and thereby permit the applicant to exercise parental responsibility to require ZE to reside with his father. No party has submitted that I cannot determine ZE’s residence under wardship because the court cannot make ZE the subject of a care order as he is seventeen. No party has sought to appeal the confirmation of ZE’s wardship on the issuing of the C66 application on 17 March 2025. Therefore I shall accept the agreed position that I can make a decision in respect of ZE’s residence exercising my powers in wardship. For good reasons the courts are slow to place limits on the Inherent Jurisdiction and the court’s role in wardship is clear and established.
All parties are agreed that the test is welfare. Ms Kate Hudson submits with force that given ZE’s age and his clear wishes, factual findings are required to justify the interference in her client’s and ZE’s Article 8 ECHR right to respect of a family life. I cannot agree with that submission. Given ZE’s age and his capacity, his mother’s rights are limited and as such, any interference in her Article 8 right to respect for a family life, would need limited justification for any such interference to be lawful. I have in mind what was said by Lady Hale in Re D [2019] UKSC 49; at paragraphs 23-23 (emphasis added):
The earlier “age of discretion” cases had established the principle that children could achieve the capacity to make their own decisions before the age of majority. It was no longer, if it ever had been, correct to fix that at any particular age, rather than by reference to the capacity of the child in question: it had already been established that a child below the age of 16 could consent to sexual intercourse so that it was not rape (R v Howard [1966] 1 WLR 13) or to being taken away so that it was not kidnapping (R v D [1984] AC 778). Parental rights and authority existed for the sake of the child, to enable the parent to discharge his responsibilities towards the child, and not for the sake of the parent. Lord Scarman put it thus (p 185):
“The principle is that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection, and education until he [the child] reaches such an age as to be able to look after himself and make his own decisions.”
The consequence was that (p 188):
“… as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”
As Lady Black explains in paras 69 to 72 of her judgment, the Gillick case is not directly relevant to the issue before us now. It had to do with medical treatment and not with deprivation of liberty. It was concerned with whether a child might acquire the capacity, and the right, to make such decisions for herself before she reached the common law age of discretion, not with whether parental authority endured beyond that age if the child lacked the capacity to decide for herself. And as Lady Black has shown, it is, to say the least, highly arguable that such authority did not extend to depriving such a child of her liberty once she had reached the age of discretion.
This point is further illustrated by the fact Article 8 does not necessarily protect the relationship between an adult child and his parent - see Kugathas v SSHD [2003] EWCA Civ 31 where Sedley LJ (with the agreement of Simon Brown and Arden LJJ (as they were)) at paragraph 14 accepts a relationship between an adult child and his parents does not necessarily acquire Article 8 ECHR protection. See also Arden LJ at paragraph 25:
“Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa.”
See also Baker LJ’s analysis (with the agreement of Peter Jackson and Warby LJJ) in Re P (Discharge of Party) [2021] EWCA Civ 512 [2021] 1 WLR 3098 at paragraphs 34-36.
I set out this learning because very soon ZE will be an adult. I quite accept Parliament has determined a person under eighteen remains a child. The Article 8 rights of both Mrs Z and ZE remain in play and may well endure beyond his majority. However, importantly, at his age, less justification is required to lawfully interfere in Mrs Z’s rights. The Article 8 ECHR adult to adult relationship case law helps to demonstrate that.
When determining ZE’s residence in wardship, I am more concerned with his rights, than his mother’s. But it is another facet of this litigation that I am not being asked to make any form of deprivation of liberty order. I am not being asked to make any coercive orders. It appears clear from the evidence that none have been required. ZE has never attempted to leave his father’s home to return to reside with his mother, even though her home is close to where he now lives and there are no restrictions on his liberty.
Therefore, I approach my task as follows:
ZE has capacity pursuant to the Mental Capacity Act 2005 to decide where to reside;
Mrs Z’s rights fall to be considered, but any interference in her Article 8 ECHR rights to respect for a family life, to determine where ZE should live and for him to live with her, requires only limited justification to avoid a violation of her rights;
ZE retains his liberty to decide where to live; I am not asked to restrict or deprive him of his liberty;
in deciding where it is in his best interests to live, ZE’s welfare is my paramount consideration, paying considerable regard to his ascertainable wishes and feelings;
it is not necessary for me to make findings of fact to decide where it is in ZE’s best interests to live as I am neither depriving him of his liberty nor cutting across his mother’s ‘right’ to decide where and with whom he should live, given his age and capacity;
I will, however, determine the facts, so that the background of what has happened is clear to ZE, and also so the facts are clear to the applicant local authority.
It follows from what I have said above, that I recognise my role in these proceedings is limited. To a large extent I consider I am providing guidance to ZE. The court is at the outer reaches of its powers. All parties have accepted wardship since March 2025. Certainly, there has been no appeal that the test of exceptionality as set out in PD 12D, has not been made out. I have some doubts about the exceptionality of the circumstances I am presented with, however, recognising this is not a case about deprivation of liberty and recognising the limits to the mother’s rights given her capacitous son can choose where he lives, I am persuaded that ZE welcomes the decision making of this court. Furthermore, I note that the decisions made in wardship for him to live with his father and see his mother are not decisions he has sought to undermine or otherwise go against.