CHAPTER ONE – AN INTRODUCTION TO THE INHERENT JURISDICTION
This chapter will focus on what is meant by the inherent jurisdiction. The definition has been subject to much debate over the years in the High Court and even at a lower level in the family court. The inherent jurisdiction is debated in terms of what limitations exist in respect of the powers that the court can exercise. As such, there is a vast amount of case law that provides guidance on what the inherent jurisdiction can be used for and once it is engaged, its limits, if any, in order to protect children.
The inherent jurisdiction is a special term that is fairly unique to England and Wales, not in respect of its existence, but in the manner that it is ultimately utilised. It must however be acknowledged that a number of other countries do have an inherent jurisdiction, such as Canada, Australia and the United States. Notwithstanding this, it is England and Wales that have attracted a lot of attention in respect of their use of the inherent jurisdiction, because the inherent jurisdiction has proved to be a very creative tool in many different avenues relating to child protection, as this book will consider.
The inherent jurisdiction
All the way back in 1968, Lord Denning in Re L (An Infant) stated in respect of the inherent jurisdiction:
“It derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves. The Crown delegated this power to the Lord Chancellor, who exercised it in his Court of Chancery. … the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate. … This wide jurisdiction of the old Court of Chancery is now vested in the High Court of Justice and can be exercised by any judge of the High Court.”
Further, in R. v Central Independent Television Plc Waite LJ said:
‘the prerogative jurisdiction has shown 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 of avoiding conflict between child welfare and other public advantages’.
To consider it in a fairly modern context, Ward LJ in Re Z (A Minor) (Identification: Restrictions on Publication) Ward LJ said:
‘The wardship or inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory though in practice the judges who exercise the jurisdiction have created classes of cases in which the court will not exercise its powers’
In 2018, the then President of the Family Division, Sir James Munby, published official guidance on the jurisdiction of the family court titled: ‘ALLOCATION OF CASES WITHIN THE FAMILY COURT TO HIGH COURT JUDGE LEVEL AND TRANSFER OF CASES FROM THE FAMILY COURT TO THE HIGH COURT’.
In the guidance, Sir James Munby set out the relationship between the family court and the High Court. He went on to state at paragraph 4:
“The High Court, of which the Family Division is part, is a superior court of record. It has unlimited jurisdiction. The family court, in contrast, is a creature of statute, with its jurisdiction defined by statute. The jurisdiction of the family court, although very extensive, is not unlimited”
The key phrase in the guidance is that in respect of the ‘unlimited jurisdiction’. The guidance goes on to give various examples of cases, which must commence in the High Court. In the first part of the schedule at Part A, it states that ‘family court does not have jurisdiction; must be commenced in the Family Division’’. They are:
‘1 Inherent jurisdiction of the court relating to children (including applications for interim relief and injunctions invoking the inherent jurisdiction of the court and applications to make a child a ward of court or to bring such an order to an end)’
The above is useful in illustrating the power of the inherent jurisdiction. In contrast to most of the family law proceedings which are heard in the Family Court, the High Court is in a unique position in that it can exercise and invoke the inherent jurisdiction.
An interesting feature of High Court proceedings is the difference between the inherent jurisdiction and wardship. Both areas are dealt with in the High Court, but whilst they are at times linked, they must be separated as otherwise practitioners fall into a trap of seeking certain relief that is not necessary. It is a common misconception that the subject children have to be made wards in order for the court to exercise its inherent jurisdiction. This is not the case. The Family Procedure Rules [‘FPR’] helpfully distil this myth and they distinguish the different characteristics of wardship. For example, the FPR 2010 defines the distinguishing characteristics of wardship as follows:
“(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”
In terms of a case law example, Parker J in AB v CD stated the following:
‘Wardship is a way in which the ‘inherent jurisdiction with regard to children’ (ie the parens patriae jurisdiction) may be exercised. Once a child is a ward of court, that child is under the continuous protection of the court, even after a final order has been made determining the issues in respect of that child. Once a child is ward of court that child’s place or country of residence or school cannot be changed without a court order’.
  P 119, para 156
  Fam 192, paragraphs 207 – 208
  Fam 1, para 23
 Practice Direction 12D, para 1.3
 Ibid, para 1.3 (a) and (b)
  1 FLR 1439, para 51