The courts’ paternal or protective jurisdiction, which enables the High Court to protect those who cannot protect themselves.

It is exercised through wardship in the case of minors, by the Family Division of the High Court and the Family Court; and by the Court of Protection under the Mental Capacity Act 2005 in relation to those lacking mental capacity. The latter jurisdiction was previously exercised in what used to be called courts of lunacy.

Though many of the authorities on the parens patriae jurisdiction are concerned with wardship (qv), it is not a precondition of its exercise that it involve a child or that any child be made a ward. The court is not acting in its familiar role of adjudicator but more widely. Its jurisdiction is parental (in the widest sense) and administrative. Disposal of controverted questions is an incident only to the jurisdiction.

There is a good discussion of the parens patriae jurisdiction in the judgment of the Supreme Court in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15; [2025] WLR(D) 220 (16 April 2025) at [38]:

“It is important to start the analysis of injunctions of the present kind by focusing upon the type of proceedings in which these orders come to be made. In proceedings of this kind the High Court is exercising its inherent jurisdiction as parens patriae, that is, it is performing the Crown’s residual function of protecting those who stand in need of protection. The court’s primary responsibility in exercising that jurisdiction in such cases is to decide which among available alternatives in medical treatment will serve the best interests of the child concerned. It is not acting simply as an adjudicator between the competing rights and obligations of the parties in an essentially adversarial contest between them. As Viscount Haldane LC explained in Scott v Scott [1913] AC 417, 437, in relation to the parens patriae jurisdiction over wards of court and incapacitated adults:

‘There the judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question … the court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction.’

Those observations are equally applicable where the child is not a ward of court, but is otherwise under the court’s protection exercising its parens patriae powers…”