Supreme Court to issue ruling next week on application by father for writ of habeas corpus over children in care
The Supreme Court will next week (29 January) hand down its judgment on a father’s application for a writ of habeas corpus in respect of his children, who are being raised in a local authority’s care.
A writ of habeas corpus is a historic court order which, if granted, requires the release of a detained person.
The appellant in The Father (Appellant) v Worcestershire County Council (Respondent) unsuccessfully applied for a writ of habeas corpus in relation to his two children, who are currently in the care of the respondent council.
On 9 June 2023, the Worcester Family Court granted Worcestershire a care order in relation to the children pursuant to section 31(1)(a) Children Act 1989. The effect of the care order is to give the local authority parental responsibility for the children. That order remains in effect and the children are currently living with foster carers.
The father did not pursue a statutory appeal against that order under the Children Act 1989, but applied for a writ of habeas corpus for the return of his children.
On 15 April 2024, that application was dismissed at a brief hearing in the High Court. The father appealed.
On 20 June 2024, the Court of Appeal found that the High Court hearing had been procedurally unfair and set aside that decision.
The Court criticised the High Court judge for her “blatantly unfair conduct”, finding that an interchange with the father demonstrated a “complete failure of proper judicial process”.
The Court of Appeal noted that the father's fundamental argument was that a statutory condition for the making of a care order under section 31(2) of the Children's Act 1989 had not been satisfied, meaning the care order had been made without jurisdiction.
The appeal judges noted that because the father's challenge to the District Judge's jurisdiction was that the threshold condition had not been met, his challenge was “necessarily a challenge to her factual findings”.
They added: “The order that the District Judge made is therefore an order of a kind which stands unless and until set aside or discharged by following the procedures contained in the Children Act and the Family Procedure Rules.”
Considering the father’s challenge, the judges observed: “as Munby J explained in S v Haringey LBC (recently endorsed by this court in Re AB (a child) (Habeas Corpus), a child living with foster parents under a care order is not detained but is simply living in the same type of domestic setting as any other child of their age would be. That is not the kind of detention at which the writ of habeas corpus is aimed.”
The Court of Appeal was satisfied that as a matter of law, the district judge's ultimate conclusion was correct, and therefore dismissed the father’s application.
The judges concluded: “The lower court had power to dismiss the father's application for a writ of habeas corpus and accordingly so do we. We therefore set aside the judge's order on the ground that the hearing was unfair; but exercise the power given to this court by CPR 52.20 (1) to dismiss the father's application.”
The father appealed to the Supreme Court.
A panel comprising Lord Reed, Lord Sales, Lord Leggatt, Lord Stephens and Lady Simler heard the case on 15 October 2024.
