Ward (law)

Overview

The wardship jurisdiction is an ancient jurisdiction derived from the Crown's duty as Parens patriae ("parent of the nation" (lit., "parent of the fatherland")) to protect his or her subject, and particularly those unable to look after themselves.[2] In the United Kingdom and other Commonwealth realms, the Queen as parens patriae is mother for all the children in her realms.[3] A court may take responsibility for the legal protection of an individual, usually either a child or incapacitated person, in which case the ward is known as a ward of the court or a ward of the state. However, the House of Lords in the case of Re F (Mental Patient: Sterilisation) held that the Queen has no parens patriae jurisdiction with regard to mentally handicapped adults.[4]

In Australia, New Zealand and the United States, the child is termed a ward of the court. In Ireland and the United Kingdom "the" is not used; the ward is thus termed a ward of court.[5] In Canada the legal term is permanent ward, except in Ontario, which uses the term Crown ward.[6]

Children who are in the custody of government departments, also known as foster care, become wards of the respective government entity, and in the US wards of the states in which they reside. The government or state is in loco parentis to the child, which generally entails assuming all lawful authority to make medical and legal decisions on the child's behalf.[7][8]

Canada

In Canada people of Native American status remain wards of the Crown as a result of Indian Act legislation. Some scholars and political organizations, such as the Assembly of First Nations, have argued that this represents an apartheid-like system of governance.[9]

United States

In the Supreme Court case Cherokee Nation v. Georgia, the native peoples were legally made to be wards of the state. One consequence of this was that they were not permitted to sue the US government because of their status as a dependent nation.[10]

The Indian Appropriations Act was passed on 3 March 1871, with an amendment ending tribal recognition and the treaty system. All Indians were made wards of the state; thus the U.S. government no longer needed tribal consent in dealing with the tribes.[11]

In California, a juvenile offender may be ordered to be a ward of a court if such juvenile violated any state law[12], curfew, or from excessive truancies[13] since the juvenile criminal justice system in California is geared toward rehabilitation instead of punishment.[14]

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See also

References
  1. Larson, Aaron (21 August 2016). "What is a Guardianship". ExpertLaw.com. Retrieved 20 December 2017.
  2. Seymour, John (1994). "Journal Article Parens Patriae and Wardship Powers: Their Nature and Origins". Oxford Journal of Legal Studies. 14 (2): 159–188. doi:10.1093/ojls/14.2.159. JSTOR 764616.
  3. Re Y (Minors) [1984] HKLR 204 at 207
  4. Tomossy, George; Weisstub, David (1997). "The reform of adult guardianship laws: The case of non-therapeutic experimentation". International Journal of Law and Psychiatry. 20 (1): 113–139. doi:10.1016/S0160-2527(96)00026-X.
  5. Judicial Office. "Judiciary.Gov.UK". Judiciary.Gov.UK. Archived from the original on 2014-05-07. Retrieved 2014-05-06.
  6. Ontario.Gov Archived July 1, 2009, at the Wayback Machine
  7. Hannon, Celia; Wood, Claudia; Bazalgette, Louise (23 June 2015). "In loco parentis". Institute of Education. Digital Education Resource Archive. Retrieved 20 December 2017.
  8. FAFSA Archived January 10, 2010, at the Wayback Machine
  9. "Indian Status". Indigenousfoundations.arts.ubc.ca. 2011-11-01. Retrieved 2014-05-06.
  10. Wilkinson, C (1998). American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. Yale University Press.
  11. "Key Events in the Presidency of Ulysses S. Grant". University of Virginia. Archived from the original on 2012-05-08. Retrieved 2012-06-17.
  12. "Law section". leginfo.legislature.ca.gov. Retrieved 2020-02-10.
  13. "Law section". leginfo.legislature.ca.gov. Retrieved 2020-02-10.
  14. "California Welfare and Institutions Code Section 202". California Office of Legislative Counsel. Retrieved 2018-09-30.
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