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  • Children: The Inherent Jurisdiction and Wardship
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Children: The Inherent Jurisdiction and Wardship

A Family Practitioner's Handbook

FROM £58.50

An invaluable practitioner title providing family lawyers with a comprehensive guide to the inherent jurisdiction.

  • Published: May 2016
  • Edition: 1st
  • Format: Paperback / eBook (ePDF) / eBook (ePub) / Online
  • ISBN: 978 1 78473 209 7
  • Authors/Editors: Michael Jones
  • Category: Family Law
"The discussion is not merely up to the moment and very topical; it is practical and directed to the needs of the busy practitioner grappling with topics as diverse as the internet and radicalisation ... The author is to be thanked and congratulated for this very timely and useful book ..."
From the foreword by The Rt. Hon. Sir James Munby, President of the Family Division

The inherent jurisdiction (including wardship) is an ever-developing concept within family proceedings, with a number of important recently reported authorities setting down parameters in respect of its use. The jurisdiction is increasingly used in order to protect children in novel and fact-specific situation which are becoming more regular in today's world.

This invaluable practitioner title provides family lawyers with a comprehensive guide to the inherent jurisdiction, the situations in which it can be invoked and its limitations, incorporating the relevant authorities and procedural guidance into an easily accessible text. 
  • Background, definition and limitations
  • General procedure in respect of application for orders made under the inherent jurisdiction
  • Providing protection from and preventing association with persons who present risk of harm to a child
  • Preventing publication and dissemination of information
  • Medical treatment and deprivation of liberty
  • Cases with a foreign element
  • Novel, unusual and exceptional: Further examples of the use of the inherent jurisdiction in children cases
  • Appendices
For a subject of such importance and of whose continuing vitality and relevance we are constantly reminded, it is surprising that so little has been written about wardship and the inherent jurisdiction. When, in 1979, Sir George Baker P wrote the foreword to the first edition of Lowe and White's now classic Wards of Court, he noted with some surprise that the most recent edition of Lowe and White was published in 1986. Thirty years later, it is time for a modern treatment, properly reflective of the current shape of a jurisdiction which, as I remarked recently, 'despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world'.

The central core of this important and valuable new book is the illuminating thematic discussion in Chapters 3-7 of the varied contemporary uses of this ancient jurisdiction. The discussion is not merely up to the moment and very topical; it is practical and directed to the needs of the busy practitioner grappling with topics as diverse as the internet and radicalisation. At the same time,our author does not omit to raise analytically challenging issues; why, for example, he asks pertinently, is the power to make orders restraining publicity still so often conceived as being part of the inherent jurisdiction? And the great utility of the book for practitioners in enhanced by the Appendices, setting out a very useful selection of statutory and other materials.

Two hundred years ago, Lord Eldon was familiar with the use of wardship to protect impressionable teenagers from the follies of youth. Everything has changed, but nothing changes. 'Hot pursuit' in the days of Lord Eldon would have been of the coach and four labouring over Shap Fell carrying the teenage heiress and heiress and her unsuitable paramour to the Scottish border and the blacksmith's forge at Gretna Green. Today, pursuit is of the airplane and bus carrying the would-be-teenage jihadist to the border between Turkey and Syria. But the approach remains and must remain as Lord Eldon put it all those years ago, 'it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done'.

The author is to be thanked and congratulated for this very timely and useful book.

Sir James Munby
President of the Family Division
April 2016
1.1 Background

The inherent jurisdiction is a concept regularly referred to within the family court arena in relation to the welfare of children, and is cited as being the very foundation of the court's powers and jurisdictions. It has generally been used to refer to the powers exercised by judges in specific sets of circumstances. The concept has been the subject of a large volume of commentary and academic debate over the years; one of the seminal texts in the area is the often cited work of IH Jacob, in which he referred to the inherent jurisdiction as being:

'So amorphous and ubiquitous and so pervasive in its operation that is seems to defy the challenge to determine its quality and establish its limits.'

This is a helpful description in that it emphasises the fact that the inherent jurisdiction is an ever changing, amorphous legal concept whose boundaries prove difficult to establish. Commentators and academics have attempted to formulate principles relating to the exercise of the inherent jurisdiction; a task that may have found to be of the highest complexity given its constantly shifting nature. The origins of the doctrine can be found in the English court, with Baron Alderton stating that:

'The power of each court over its own processes is unlimited: it is a power incident to all the courts inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purposes of injustice. The exercise of power is most certainly a matter of the most careful discretion.'

The inherent jurisdiction was therefore seen, and continues to be seen, as an avenue which can be used by the courts in order to stop injustice and abuse of process. Many years after the decision in Cocker V Tempest, lord Diplock made the following observation:

'It would stultify the constitutional role of the High Court as a court of justice if it were not armed with the power to prevent its process being misused in such a way as to diminish its capability at arriving at a just decision in the dispute.'

Historically, the courts have exercised the inherent jurisdiction in order to prevent injustice from being done. Within the area of the law relating to children, the concept has been used as a mechanism by which to offer protection to a child (both children subject to the relevant application and, in some cases, children who are not). There has been debate amongst academics and legal commentators in respect of the confusion between the inherent jurisdiction of the court and the inherent powers of the court, with the inherent jurisdiction relating to the authority, whilst the inherent powers of the court to take on a matter and determine it in a manner not excluded by statutory authority, whilst the inherent powers of the court are, by definition, the powers which every court has in order to regulate its own procedure or, to use a different phraseology, the powers used by the court to give effect to its jurisdiction. Scholarly debate as to the correct definition of the inherent jurisdiction is beyond the scope of this book and, when considering the following chapters, it is suggested that practitioners are advised to look upon the inherent jurisdiction in the following terms; a superior court having the jurisdiction to hear any matter that comes before it unless limited by statute. It is a wide-ranging doctrine allowing the court to control its own processes and procedures when dealing with children.

The inherent jurisdiction has been utilised by the courts in many areas, including judicial review, punishment for criminal contempt and the granting of bail to name but a few. This book will deal solely with the inherent jurisdiction within the context of court proceedings relating to children. Although the concept is, as has been described above, an age old common law doctrine, it was given a statutory footing within the Family Division of the High Court by s 1(2) of the Administration of Justice Act 1970, which assigned to the Family Division all cases involving the exercise of the High Court's jurisdiction in the specified matters, which included matters concerning wardship, the guardianship of minors and adoption. The deployment of the inherent jurisdiction has however, been used sparingly (or at least to a lesser degree) since the Children Act 1989 came into force, with the most common sets of circumstances in which it is invoked being set out within the Family Procedure Rules 2010, PD 12D as follows.

'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 proceeding 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 injurisdictions 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 areas are set out within the practice direction above are cited as those in which the inherent jurisdiction is most often invoked in cases relating to children, however this list is non-exhaustive and in reality, the jurisdiction can at least theoretically, be used in any number of different ways in different sets of circumstances, unless limited by statute or the common law. 
The Inherent Jurisdiction: what place does it have in the future of family justice?

Michael Jones, Barrister

Michael Jones is a family practitioner based predominantly on the Northern Circuit. The majority of his work involves public and private law children act proceedings as well as work in the Court of Protection. He has an interest in cases with an international element, particularly those where there are live issues of jurisdiction that require determination. Michael is an elected member of the Bar Council.

An ever-evolving jurisdiction
The inherent jurisdiction is one of the legal oldest concepts existing within the family jurisdiction, with its use having been increasingly curtailed over the years, most notably following the Children Act 1989 coming into force. It is a doctrine of the English common law that the High Court has the jurisdiction to hear any matter that comes before it, unless Parliament has specifically limited that authority via statute, usually by granting exclusive jurisdiction to some other Court or tribunal. It is perhaps best described by Lord Diplock in the case of Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Company Ltd, as a general power of the Court to control its own procedure so as to prevent its being used to achieve injustice. In Re M and N (Minors) [1990] 1 All ER 205 at para [537], Waite LJ stated the following in relation to the inherent jurisdiction:

'The prerogative jurisdiction has show striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and avoiding conflict between child welfare and other public advantages.'

A number of recently reported cases act as reminders of the importance and continuing utility of the use of the inherent jurisdiction in the context of family justice in both domestic cases, and in those with an international element...

Read the full article from the November 2015 issue of Family Law Journal 

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