PRACTICE DIRECTION 12D – INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS
PRACTICE DIRECTION 12D – INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS This Practice Direction supplements FPR Part 12, Chapter 5
|The nature of inherent jurisdiction proceedings||Para. 1.1|
|Transfer of proceedings to family court||Para. 2.1|
|Removal from jurisdiction||Para. 4.1|
|Criminal Proceedings||Para. 5.1|
|Applications to the Criminal Injuries Compensation Authority||Para. 6.1|
|The role of the tipstaff||Para. 7.1|
|Application to set aside an inherent jurisdiction order||Para 8.1|
The nature of inherent jurisdiction proceedings
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. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
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.
The court's wardship jurisdiction is part of and not separate from the court's inherent jurisdiction. 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.
Transfer of proceedings to
Whilst not have jurisdiction to deal with applications that a child be made or cease to be a ward of court, consideration should be given to transferring the case in whole or in part to where a direction has been given confirming the wardship and directing that the child remain a ward of court during his minority or until further order.
The must transfer the case back to the High Court if a decision is required as to whether the child should remain a ward of court.
The following proceedings in relation to a ward of court will be dealt with in the High Court unless the nature of the issues of fact or law makes them more suitable for hearing in the –
(a) those in which an officer of the Cafcass High Court Team or the Official Solicitor is or becomes the litigation friend or children's guardian of the ward or a party to the proceedings;
(b) those in which a local authority is or becomes a party;
(c) those in which an application for paternity testing is made;
(d) those in which there is a dispute about medical treatment;
(e) those in which an application is opposed on the grounds of lack of jurisdiction;
(f) those in which there is a substantial foreign element;
(g) those in which there is an opposed application for leave to take the child permanently out of the jurisdiction or where there is an application for temporary removal of a child from the jurisdiction and it is opposed on the ground that the child may not be duly returned.
Where the child has formed or is seeking to form an association, considered to be undesirable, with another person, that other person should not be made a party to the application. Such a person should be made a respondent only to an application within the proceedings for an injunction or committal. Such a person should not be added to the title of the proceedings nor allowed to see any documents other than those relating directly to the proceedings for the injunction or committal. He or she should be allowed time to obtain representation and any injunction should in the first instance extend over a few days only.
Removal from jurisdiction
A child who is a ward of court may not be removed from England and Wales without the court's permission. Practice Direction 12F (International Child Abduction) deals in detail with locating and protecting children at risk of unlawful removal.
Case law establishes that:
- There is no requirement for the police or any other agency carrying out statutory powers of investigation or enforcement to seek the permission of the court to interview a child who is a ward of court. The fact that a child is a ward of court does not affect the powers and duties of the police or other statutory agencies in relation to their investigations. Provided that the relevant statutory requirements are complied with, the police or other agencies are under no duty to take any special steps in carrying out their functions in relation to a child who is a ward of court.
- Where a child has been interviewed by the police in connection with contemplated criminal proceedings and the child is, or subsequently becomes, a ward of court, the permission of the court is not required for the child to be called as a witness in the criminal proceedings.
For a full review of the relevant case law and principles, see In the matter of a Ward of Court  EWHC 1022 (Fam).
Where the police or other statutory agencies take any action in relation to a child who is a ward of court, the person(s) with day to day care and control of the child, or where applicable the local authority, should bring the relevant information to the attention of the court as soon as practicable. Where wardship proceedings are continuing, any children’s guardian appointed for the child must be informed of the situation by the other parties.
Applications to the Criminal Injuries Compensation Authority
Where a child who is a ward of court has a right to make a claim for compensation to the Criminal Injuries Compensation Authority (‘CICA’), an application must be made by the child's guardian, or, if no guardian has been appointed, the person with care and control of the child, for permission to apply to CICA and disclose such documents on the wardship proceedings file as are considered necessary to establish whether or not the child is eligible for an award plus, as appropriate, the amount of the award.
Any order giving permission should state that any award made by CICA should normally be paid into court immediately upon receipt and, once that payment has been made, application should made to the court as to its management and administration. If it is proposed to invest the award in any other way, the court's prior approval must be sought
The role of the tipstaff
The tipstaff is the enforcement officer for all orders made in the High Court. The tipstaff's jurisdiction extends throughout England and Wales. Every applicable order made in the High Court is addressed to the tipstaff in children and family matters (eg ‘The Court hereby directs the Tipstaff of the High Court of Justice, whether acting by himself or his assistants or a police officer as follows…’).
The tipstaff may effect an arrest and then inform the police. Sometimes the local bailiff or police will detain a person in custody until the tipstaff arrives to collect that person or give further directions as to the disposal of the matter. The tipstaff may also make a forced entry although there will generally be a uniformed police officer standing by to make sure there is no breach of the peace.
There is only one tipstaff (with two assistants) but the tipstaff can also call on any constable or bailiff to assist in carrying out the tipstaff's duties.
The majority of the tipstaff's work involves locating children and taking them into protective custody, including cases of child abduction abroad.
Application to set aside an inherent jurisdiction order
As set out in rule 12.42B, the Part 18 procedure applies to set aside an inherent jurisdiction order. Where such an application was made before rule 12.42B came into force, the Part 18 procedure will still apply subject to any directions that the court might make for the purpose of ensuring that the proceedings are dealt with fairly.
An application under rule 12.42B should be dealt with by the same level of judge that dealt with the original application. Where reasonably possible, the application should be dealt with by the same judge that dealt with the original application.
The application should be made promptly upon the party becoming aware of the information or upon the circumstances occurring that give rise to the application.
An application to set aside an inherent jurisdiction order should only be made where no error of the court is alleged (unless the circumstances set out in rule 18.11 apply). If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which an inherent jurisdiction order may be set aside are and will remain a matter for decisions by judges. The grounds may include: (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a fundamental change in circumstances which undermines the basis on which the order was made; and (v) the welfare of the child requires it.
The effect of rules 12.42B(1)(a) and (2) is that an application may be made to set aside all or only part of an inherent jurisdiction order, including an inherent jurisdiction order that has been made by consent.
Inherent jurisdiction orders are defined in the rule and include any order, declaration or judgment made under the inherent jurisdiction, including but not limited to orders making a child a ward of court, orders regarding medical treatment of a child and orders for the return or non-return of a child made under the inherent jurisdiction. Inherent jurisdiction orders do not include return orders made under the 1980 Hague Convention (for those orders, see rule 12.42B and paragraphs 4.1A – 4.1B of Practice Direction 12F), but can include orders where the basis to exercise jurisdiction is found in other instruments, such as the 1996 Hague Convention (though the source of power for the return order remains the inherent jurisdiction). Inherent jurisdiction orders do not include orders or judgments made within inherent jurisdiction proceedings for which the power to make such an order or judgment is found in statute (such as the power to make return orders under section 8 of the Children Act 1989) or these Rules
(and not the inherent jurisdiction). The power to set aside any such orders would, if it exists, derive either from relevant statutory provisions or form the power to vary or revoke in rule 4.1(6), or from any inherent power of the High Court to set aside its own orders. Rule 12.42B(6) clarifies that any such other power to revoke, discharge or set aside is not ousted by the rule.
In applications under rule 12.42B, the starting point is that the order which one party is seeking to have set aside was properly made. A mere allegation e.g. that it was obtained by fraud, is not sufficient for the court to set aside the order; evidence must be provided. Only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and rehear the original application. The court has a full range of case management powers and considerable discretion as to how to determine an application to set aside an inherent jurisdiction order, including where appropriate the power to strike out or summarily dispose of an application to set aside. If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so. Ordinarily, once the court has decided to set aside an inherent jurisdiction order, the court would give directions for a full rehearing to re-determine the original application. However, if the court is satisfied that it has sufficient information to do so, it may proceed to re-determine the original application at the same time as setting aside the inherent jurisdiction order.”.