M (Children), Re

The inherent jurisdiction cannot be used to require a local authority to care for or accommodate a child where the statutory scheme does not authorise that outcome. Wardship may nevertheless provide a framework supporting voluntary accommodation which is lawfully in place.

The wardship principle that no important step may be taken without the court’s consent cannot achieve indirectly an outcome prohibited by statute. A sealed and unamended order is normally treated as the court’s operative order unless clear evidence proves otherwise. Wardship ends when the ward reaches 18, although protective injunctions under the inherent jurisdiction may extend into adulthood.

A 17-year-old girl with a significant learning disability had been accommodated in foster care following findings of sexual abuse and parental failure to protect her. Because Children Act 1989, section 31(3), prevented the making of a care order after her seventeenth birthday, the High Court continued her wardship.

The judge’s reasons proposed ordering the local authority to provide care and accommodation, but the sealed order merely continued wardship during the girl’s minority. Her mother appealed on jurisdictional grounds. The local authority cross-appealed, seeking continuation of wardship beyond the girl’s eighteenth birthday.

The central issues were whether the sealed order impermissibly required local authority accommodation, whether wardship could support voluntary accommodation, and whether wardship could continue into adulthood.

1. Both the appeal and the cross-appeal were dismissed. The sealed order merely continued the girl’s wardship during her minority. It did not require the local authority to care for or accommodate her and therefore did not contravene section 100(2) of the Children Act 1989.

2. The inherent jurisdiction cannot authorise a local authority to provide care where the authority lacks power to do so under the statutory scheme. It may support arrangements already lawfully and voluntarily in place by orders which section 100 does not exclude. Re E (Wardship Order: Child in Voluntary Accommodation) [2012] EWCA Civ 1773 established only an ancillary use of wardship to support agreed accommodation. If the accommodation agreement ends, the court cannot require its continuation.

3. The wardship principle that no important step may be taken in a child’s life without the court’s consent cannot circumvent section 100. If a parent sought permission to remove the child from voluntary accommodation, the court could not use that principle to impose indirectly a binding requirement that the child remain in local authority care.

4. The operative order was the sealed order, not a wider draft or the intention expressed in the reasons. Unless clear proof shows otherwise, a sealed order formally issued and not subsequently amended will normally be treated as the court’s order. Here the circumstances indicated that the judge considered but rejected the wider draft.

5. Wardship could not be extended beyond the child’s eighteenth birthday. Re SO (Wardship: Extension of Protective Injunction Order) [2015] EWHC 935 (Fam) concerned the extension of protective injunctions into adulthood, not the continuation of wardship status. The existing wardship therefore ended when the girl reached 18.

The court also stated that the girl’s capacity to decide her future care required prompt assessment. If she lacked, or might lack, capacity under the Mental Capacity Act 2005, her care arrangements should be brought promptly before the Court of Protection.

• Court of Appeal (Civil Division): Dismissed both the mother’s appeal and the local authority’s cross-appeal. The sealed order remained unchanged and expired when the child reached 18.
• High Court, Family Division: Hogg J continued the child’s wardship during her minority. The sealed order did not require the local authority to provide care or accommodation. Permission to appeal was refused.