The recently reported case of MB v GK & Ors (No 2) Wardship (Welfare) [2017] EWHC 16 (https://www.familylawhub.co.uk/default.aspx?i=ce5609) deals with the legal concepts of wardship and welfare in the context of international family law.
This was a long running and acrimonious court case in which the mother, who was a Mongolian national, lived in London. The father was a national of Singapore. He had absconded from the parties’ home in London to Singapore. The parties’ 3 year old son was living in Singapore with the paternal grandparents, having been retained there against the mother’s wishes.
The child was made a ward of the English court. The English court had jurisdiction (power) to determine the future arrangements for the child although the father and his parents tried (unsuccessfully) to argue that it did not.
The father argued that the child was now settled in Singapore, having lived there since 2013. His position was that a return to the UK would put the child in an intolerable situation, thereby exposing him to psychological harm. He and his parents relied on the fact that the child has had no real contact with his mother for the last two and a half years. The mother’s position was that the child should be returned to live with her in London.
After bitterly contested litigation spanning more than two years with numerous appeals by the father, the case was heard by Mrs Justice Roberts in the High Court. The father and his parents chose not to participate in the final hearing.
The judge conducted an in depth analysis of all the evidence and reached the clear conclusion that the child’s best interests laid in a return to his mother’s care in London. The father’s arguments were rejected and an order was made for the return of the child to the UK.
What is wardship?
In this case, the child was made a ward of the court at an early stage in the proceedings. Wardship means that the High Court Judge makes decisions about what is best for the child and no significant steps can be taken in relation to that child without the Court approving it.
The court has a duty to make sure that a child who is made a ward of the court is protected and properly taken care of. The court can make any order or determine any issue in respect of the child unless limited by case law or statute; this means that the implications of wardship can theoretically be very wide-ranging.
Wardship is used in child abduction cases such as this one, to protect the abducted child.
What is the welfare principle?
When deciding the final outcome of this case, Mrs Justice Roberts’ paramount consideration had to be the welfare of the child, pursuant to section 1 of the Children Act 1989.
This piece of law states that when a court decides an issue about the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In other words, the most important factor is what is best for the child.
The court has to have regard to the welfare checklist. Among the things the court must consider are:
The ascertainable wishes and feelings of the child concerned (considered in light of his/her age and understanding);
His/her physical, emotional and/or educational needs;
- The likely effect on him/her of any change in his circumstances;
- His/her age, sex, background and any characteristics which the court considers relevant;
- Any harm which he/she has suffered or is at risk of suffering;
- How capable each of his/her parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
In this case, the court appointed a Guardian to represent the rights and interests of the child. Guardians are independent of social services, the Court and everyone else involved in the case. Children’s Guardians usually work for CAFCASS or may be self-employed.
Summary
As this case shows, international family law can be extremely complex and multi-faceted. It is vital to get proper legal advice at an early stage.
If your case has an international element, speak to the experts. At Raydens we are specialist family law solicitors who routinely work with expatriate clients on divorces, financial disputes and issues involving children whether living in this country or abroad.
