S v S & Ors

Wardship cannot be used to prevent or control the lawful exercise of statutory immigration powers. Challenges to detention, removal, or detention conditions are matters of public law for the Administrative Court, including claims under the Human Rights Act 1998. The Family Division cannot order release from immigration detention, regulate detention conditions, or require access to a detainee. Wardship should not be maintained where it serves no useful or permissible purpose, or where its process is being used to pressure a public authority or gather evidence for judicial review. The relevant question is whether continuing proceedings confer a solid advantage on the child. Good faith does not make proceedings appropriate if their practical effect is impermissibly to hinder statutory powers.

Wardship proceedings were commenced by a relative concerning a child detained as the dependent of a failed asylum seeker awaiting removal. The proceedings sought declarations concerning the child’s health and detention, together with a psychological assessment. The substantive complaints concerned the lawfulness, proportionality, conditions, and welfare consequences of the child’s detention, and the failure to produce medical records.

Judicial review proceedings concerning related immigration and detention matters had previously failed or been discontinued. A fresh judicial review application was issued in the Administrative Court during the hearing. The central issue was whether the Family Division could properly continue the wardship proceedings, or grant relief which would affect immigration detention or assist the judicial review proceedings.

1. Disposition. The wardship proceedings were terminated and the wardship discharged. Directions were made concerning the commencement and conduct of related judicial review proceedings. No order for costs was made.
2. Limits of wardship. Wardship, although theoretically unlimited, cannot be used to prevent the exercise of statutory powers conferred by Parliament where the statutory scheme is intended to be exclusive. The Family Division therefore could not interfere with the Secretary of State’s lawful immigration and asylum powers, even though the child was a ward of court.
3. Proper forum. Challenges to detention, removal, detention conditions, proportionality, or compliance with public-law duties had to be brought in the Administrative Court by judicial review and, where appropriate, under the Human Rights Act 1998. The Family Division could not order the child’s release, regulate the conditions of detention, or require the admission of a psychologist or psychiatrist to the place of detention.
4. Use of wardship process. A declaration that the child’s health was a concern and was not being properly addressed was inappropriate because it concerned no defined legal issue and would operate principally as pressure on the Secretary of State. An order for a psychiatric or psychological report was likewise inappropriate where it was sought to obtain evidence for proceedings properly brought in the Administrative Court.
5. Utility of proceedings. The proper question was whether there was some solid advantage to the child from continuing the proceedings. While the child remained detained, wardship could not provide any meaningful relief. The possibility of future release did not justify keeping the proceedings alive, particularly where no present need for wardship had been demonstrated.
6. Costs. Although the proceedings were misconceived, no costs order was made because the claimant was publicly funded, the litigation had been pursued in good faith for the purposes of the decision, and a costs order would probably have been unenforceable. The judgment gave a warning that costs orders might be made in future cases involving inappropriate use of wardship in immigration matters.

First-instance wardship proceedings in the High Court Family Division. The judgment records related judicial review proceedings in the Administrative Court, including earlier proceedings which had failed or been discontinued, but no appellate decision in the present wardship proceedings.