Habeas corpus in children proceedings? Some clarity from the Supreme Court
On 29 January 2025, the Supreme Court handed down judgment in the case of The Father (Appellant) v Worcestershire County Council [2025] UKSC 1, a novel case addressing whether habeas corpus has any place in challenging care orders removing children from the care of their parents.
Background
The appellant is the father of two children who were placed in the care of Worcestershire County Council by a care order made by the Family Court under s.31 Children Act 1989, as the threshold of significant harm in s.31(2) had been crossed (factual findings included a history of domestic violence, the father’s criminal history and drug and alcohol abuse). Per the agreed care plan, both children are in long term foster care and currently they are living with the same foster parents. The appellant contended that this constitutes unlawful detention and applied to the High Court for a writ of habeas corpus (a longstanding procedure, usually used in criminal law, which enables a court to order the release of an individual from unlawful detention).
The High Court initially dismissed the application on the basis that that it was ‘inappropriate’ and ‘wrong’ and that the father should instead appeal the care order. The Court of Appeal set aside the High Court’s decision on the basis that the hearing had been procedurally unfair and considered the matter afresh yet reached the same verdict. In his appeal to the Supreme Court, the father submitted that the children were detained by virtue of the care order, alongside other procedural contentions.
Judgment
The Supreme Court has now unanimously dismissed the appeal for the reasons set out below:
1. The father had the right to challenge the care order by way of appeal or applying to discharge the order. This would be the more appropriate way to proceed in the best interests of the children, as the Court would have been able to hear submissions from all parties, including the father and the local authority.
2. As a care order transfers parental responsibility to the local authority, which is then delegated to the foster parents, if the court were to find that the foster parents’ actions amount to unlawful detention, the writ of habeas corpus would only have the effect of returning the children to the care of the local authority.
3. There is no factual basis for finding that the children are detained in this case. They are simply living normally with foster parents.
4. Even if a care order itself were to result in the detention of a child, as it is a Court order, it provides a valid defence for the individual detaining the child in question. Habeas corpus cannot be used to challenge the Court order as it is against the individual, not the Court.
The best remedy for the appellant remains to appeal the care order under s.31K Matrimonial and Family Proceedings Act 1984 or apply for the discharge of the care order under s.39(1) Children Act 1989. The father in this case chose not to do so and he still has the option to do so (albeit would need to apply for permission to appeal out of time).
Reflection
What makes an otherwise trite judgment more important is its role as a reflection on the current state of funding for family litigation and the effects of cuts to the legal aid budget. Having handed down the judgment in Court this morning, Lord Stephens took the opportunity to commend the father for the polite manner in which he had conducted himself before the Court in his submissions as a Litigant in Person; yet he also balanced this with an observation that the existing remedies available to a person in his position, such as appeal (rather than a writ of habeas corpus), have been ‘carefully calibrated to protect children’. At first glance, that a Litigant in Person can have his day in court and be heard all the way to the Supreme Court is to be celebrated as an example of access to justice in action. In reality, the picture is bleaker; this Judgment would not have been needed if not for a (in the Court of Appeal’s words) ‘complete failure of proper judicial process’ in the first instance where the judge failed to explain to an ordinary lay person why a writ of habeas corpus was not the correct process to follow. Furthermore, the whole matter could have been avoided if the father had received proper legal advice from the outset, with Lord Neuberger being the latest voice to call for legal aid cuts to private family law cases to be reversed earlier this month. It goes without saying that the main lesson to take away from this judgment is that, in the interests of saving time and money whilst reaching the right outcome for all involved, the earlier clients can, and do, consult legal advice, the better.
How we can help
We understand families are complex. They hold difficult dynamics and scope for challenge and conflict. Families are also usually central in our lives. At Fladgate, we distinguish ourselves by a core principle – only by having a deep understanding of our clients’ needs, can we deliver the best outcome for each individual client, recognising the cultures and communities they live in, the industries they work in and the challenges they look to resolve. However, we are proud that our clients hail from every walk of life, across the globe.
Our Family Team holds individual and collective expertise across the full range of family law disciplines – we are equally adept in litigation and arbitration as we are in non-Court dispute resolution, including mediation (with our two qualified mediators) and collaborative law. We are leading the way in the modernisation of family law and how it is practiced – we are collaborating with some of London’s best-known therapists, psychologists and psychiatrists to find therapeutic based solutions for our clients and their families, which is particularly important for those with children.
For more information on how we can assist you, please contact a member of the Family Team here
