The Supreme Court dismissed a father’s writ of habeas corpus after he challenged a care order over his children.
Background:
The children, aged 11 and 9, were placed under a care order by DJ Solomon in the Family Court on 9 June 2023 under Section 31 of the Children Act (CA) 1989. The parents are not married and do not live together. On 21 August 2019, pursuant to Section 8 of the CA 1989, the Family Court made a child arrangement order (CAO) under which the children were to live with the father with supervised contact with the mother. On 28 October 2022, care proceedings were commenced under Section 31 of Part IV of the CA 1989 which both the father and the mother opposed. The children expressed their wishes to live with their father. However, DJ Solomon in the Family Court found that the threshold in Section 31(2) of the CA 1989 had been crossed based on the history of domestic violence, the father’s criminal history, and his habitual drug and alcohol abuse. The father did not seek to challenge the care order because “it would mean that he accepted the order as valid.”
The father applied for a writ of habeas corpus in March 2024 in an attempt to release his two children from the custody of the Worcestershire County Council, arguing that his children were unlawfully detained by the Council. His application for a writ of habeas corpus was dismissed by the High Court on the basis that ‘applying for the writ was both “inappropriate” and “wrong”.’ The father appealed to the Court of Appeal (CoA) and, while the case was looked afresh by the CoA, it arrived at the same conclusion. The father appealed to the Supreme Court.
Decision:
The Supreme Court unanimously dismissed the appeal with Lord Sales and Lord Stephens reiterating that “The writ of habeas corpus is of the highest constitutional importance as it is a means by which the liberty of the individual is vindicated.” The Court concluded that neither child was detained and, therefore, the habeas corpus application could not succeed. Indeed, the Court agreed with the Council’s argument that the children were not detained but rather living in a domestic setting with foster parents.
One of the issues was the assumption of the father that the care order was an order for the detention of the children which would allow the Council “in the exercise of parental responsibility, consent to the deprivation of the children’s liberty amounting to detention.” However, those are not the effect of the order set out in Section 33 of the CA 1989.
The Court analysed the situation, assuming that “a care order is an order for the detention of the children or an order under which the Council may, in the exercise of parental responsibility, consent to the deprivation of the children’s liberty amounting to detention, then, as we explain in Section 8 below, on an application for habeas corpus (a) the care order would be lawful authority for the children’s detention and a complete defence to the application unless the order was set aside by some appropriate procedural route; (b) ordinarily the applicant would have to bring judicial review proceedings, in aid of the habeas corpus application, to quash the care order; (c) permission to bring an application for judicial review would be refused if, as here, there was a suitable alternative remedy by way of an appeal against, or an application to discharge, the care order; and (d) in such circumstances the application for habeas corpus would be dismissed.” So, the lawfulness of the care order would only be relevant in an application for habeas corpus if the order is for the ‘detention’ of a child.
In any regard, habeas corpus was not the correct remedy for challenging the care order, and other remedies, such as an appeal, would be more appropriate. The Court noted the procedural advantages of challenging the order by an application to discharge the care order or an appeal rather than through a writ of habeas corpus. For instance, “The father would be a party to the appellate proceedings as would the Council. A guardian would be appointed under Section 41(2) read with Section 41(6)(h)(i) of the Children Act 1989, who would be under a duty to safeguard the interests of the children in the manner prescribed by rules of court. Therefore, the Court would have the advantage of hearing submissions from all the parties aimed at securing, as its paramount consideration, the welfare of the children.”
The habeas corpus could only potentially be appropriate in extreme or unusual circumstances which would amount to unauthorised detention.
Implications:
This decision underscores the need to choose the right remedy to challenge a care order. The Supreme Court made it clear that a writ of habeas corpus is not available to challenge a care order unless there are extreme and unusual circumstances that would be tantamount to the unauthorised detention of a child. The reasoning is quite simple, the Children Act 1989 contains elaborate procedures to ensure the rights of all parties are taken into consideration. A writ of habeas corpus cannot be used to circumvent those established procedures.
This case is also interesting as the father represented himself, which might explain his incorrect assumption about the care order.
