THE USE OF WARDSHIP BY LOCAL AUTHORITIES
| Published date | 01 November 1989 |
| Author | Sheelagh Morton,Judith Masson |
| Date | 01 November 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02627.x |
THE USE
OF
WARDSHIP
BY
LOCAL
AUTHORITIES
’
INTRODUCTION
THE
Children Act
1989
radically reforms the law relating to children
changing the rights and responsibilities
of
parents, the power of local
authorities and the role and jurisdiction of the courts. Amongst the
most controversial provisions are those which relate to wardship and
local authorities.’ The power to commit a child into the care
of
a local
authority in wardship is abolished. Local authorities will require
leave to institute wardship proceedings; leave will only be granted
if
wardship is the only way for the local authority to obtain the desired
result and there is reasonable cause to believe that the child would
suffer significant harm without it. This provision was not recom-
mended by any
of
the reports which considered the reform
of
child
law although it was expected that use of wardship would diminish
after defects in the law were removed.’ The Report
of
the Inquiry
into Child Abuse in Cleveland supported the use
of
~ardship.~ Abol-
ition and restriction
of
wardship were canvassed by the Law Com-
mission in Working Paper No.
101,
Wards
of
Court,
but there was
considerable opposition to this from the judiciary and the legal pro-
fession. The following report, No.
172;
did not pursue these ideas.
Nevertheless within a few months the Children Bill introduced
restrictions which were enacted despite the tabling
of
many amend-
ments.’ This paper examines the use of wardship by local authorities.
Using data from court records, it describes the characteristics
of
wardship cases involving local authorities, the way they were handled
and their outcome. It explains how local authorities use wardship and
why their use of wardship increased markedly in the
1970s
and
1980s.
It assesses the extent to which the unique features of the wardship
jurisdiction such as the fact that there are no grounds other than the
child’s welfare for the court’s intervention, the wide power
of
the
High Court to make orders and its continued supervision of cases
were necessary in the cases heard. From this material it considers the
desirability
of
the restrictions on local authorities in the new legis-
lation and their likely consequences.
’
Children Bill 1989, cl. 84. All clause numbers refer
to
the Bill as printed after the
(a) DHSS
Review ofchild Care Law
(H.M.S.O. 1985). (b)
The Law on Child Care
’
Report
of
the Inquiry into Child Abuse in Cleveland
1987
Cm. 412 1988 para. 16.37
’
Eighteen amendments were tabled
for
Committee Stage in the House
of
Lords by
House
of
Commons Committee stage.
and Family Services
Cm. 62 1987.
and p. 235.
Review
of
Child Law Guardianship and Custody H.C.P. 594 (1988).
a total of nine peers. H.L. Deb., Vol503, cols 558-568 January 24.1989.
762
Nov.
19891
THE
USE
OF
WARDSHIP
BY
LOCAL
AUTHORITIES
763
BACKGROUND
The last
20
years have witnessed enormous activity in the area
of
child protection. Issues which had been considered for many years by
only a few concerned professionals entered the public domain with
the rediscovery by the media6
of
child abuse and neglect. The wide
reporting
of
a number of tragic deaths
of
children who were or had
been in the care
of
local authorities7 put pressure on social workers
to
do more and to do better. In turn, social workers claimed more
resources for child care work and more powers to protect children.
Some
of
the child death enquiry reports identified deficiencies in the
law.8 Many identified lack of understanding
of
the law amongst those
whose job it was to protect ~hildren.~ All noted lack
of
co-operation
between agencies.
Alongside the claims for reforms which would facilitate greater
state intervention in family life there were also demands to enhance
the position
of
parents whose children were in care or at risk
of
enter-
ing care. The setting up
of
the Family Rights Group in
1975
provided
a focus and voice for those who thought that child protection should
involve more than rescuing children from their families.’” In part
through the work
of
F.R.G., the absurdity and injustices
of
care pro-
ceedings (the usual method
of
removing abused or neglected chil-
dren) were recognised. These proceedings although concentrating on
parental actions and attitudes, involved only the local authority and
the child-the parents were not parties and could not, therefore,
obtain legal aid for representation.
I’
Other pressure groups were
established” which put the case for recognising the rights and views
of
the children concerned. By the early
1980s
the debate on child wel-
fare had polarised between those claiming more power for the state
and those arguing that families should not be subjected to state inter-
vention.13
Dingwall and Eekelaar carried out a major ethnographic study
of
‘
N.
Parton,
The Politicsof Child Abuse
(Macmillan, 1985). 63.
’
For reference
to
the reports
of
inquiries between 1973 and 1981 see
DHSS
Child
Abuse--a Study of Inquiry Reports
(H.M.S.O.
1982) appendix 1. Since 1981 there have
been a number
of
well publicised inquiries into the deaths
of
Jasmine Beckford (1985),
Kimberley Carlile (1987) and Tyra Henry (1987) as well as the recent Butler-Sloss
In uiry.
’
Ibid.,
appendix
4.
Ibid.,
para. 1.62.
lo
Family Rights Group Statement printed in,
(inter ah) Fostering Parental Contacf
(1982).
‘I
In practice, until the late 1970s
it
seems that the solicitor representing the child
usually took instruction from the parents and thus represented their point
of
view. See
A.
Macleod
Representation of Children in Cure Proceedings
(1984) Family Law
Research Unit, University
of
Bristol p.
9.
Children’s Legal Centre: Voice
for
the Child in Care: National Association
of
Young People in
tire.
Social Work 265.
l3
See L. Fox “Two value positions in child care law and practice” (1982) 12 Br. J.
of
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