In the matter of AB (a child) [2024] EWCA Civ 105

Background

This case relates to a child (“AB”) who had been living with her father since January 2022 following a child arrangements order.  The order provided for no contact with the mother after reports that AB had been missing since December 2020 and made arrangements for AB to live with the father. AB was not found until January 2022, when she was located with her mother living at an organisation called Universal Law Community Trust (“ULCT”) in Port Talbot. The mother was arrested and released on bail, and a prohibited steps order was issued, preventing the mother from exercising parental responsibility over AB until further order.  The local authority had been directed to carry out an assessment under section 37 of the Children Act 1989 to ascertain the role that ULCT had in the mother’s life and any harm AB may have suffered due to ULCT’s involvement.

The mother made an application using civil procedure seeking to set aside the prior orders of the Family Court, however, the Court of Appeal said that the application had been ‘rather obscure’ and an application for discharge or variation of a child arrangements order should be made in the Family Court.

Subsequently, the mother applied for a writ of habeas corpus in June 2023; a habeas corpus is a remedy protecting the citizen or subject against unlawful detention or imprisonment.  The mother submitted that AB was not a person as defined by section 105 of the Children Act 1989, and that if the Interpretation Act 1978 had meant for a child (or any individual human being) to be a person (rather than bodies of persons), this would have been expressly stated. The mother claimed that the Family Court had no jurisdiction over AB on that basis.

However, the mother’s application was dismissed by the Family Court pursuant to the Civil Procedure Rules (“CPR”). According to CPR 87.4(f), where the judge considers the application under the rule on paper, the judge may dismiss the application. An applicant can request the decision to be reconsidered at a hearing under CPR 87.4(2), but the request must be filed within 7 days after service of the order dismissing the application. Although the mother made an application under CPR 87.4(2) for reconsideration at an oral hearing, the judge dismissed the application pursuant to CPR 87.5(f) in September 2023, holding that the mother’s assertation that the Family Court lacked jurisdiction in this case had been wholly misconceived.

Proceedings

In February 2024, the mother appealed the decision of the Family Court to the Court of Appeal, Family Division, on grounds that AB had been unlawfully detained and that a writ should be made for habeas corpus requiring AB to be returned to the mother’s care.  The mother submitted that AB had been, “abducted/kidnapped under the colour of law and was being forcefully detained from her natural mother and primary natural guardian”.  The mother submitted the following five grounds for appeal.

Ground 1: “Breach of duty and obligation to obey legal authorities, follow due process and to uphold and further the rule of law”. This relates to the allegation that the judge was in breach of his judicial oath and failed to uphold the rule of law because he did not accept that AB was not a person and was therefore forcibly detained.

Ground 2: “Disregard of verified legal definitions, admissible evidence, and failure to accurately apply the law to the facts”. This again goes to the judge’s alleged failure to “accept the interpretation written in law”.

Ground 3: “Dismissal of the application without due deliberation”. This related to the judge’s alleged failure to “conduct a full assessment of the legal violations and interferences with Convention or Constitutional fundamental rights”.

Ground 4: “Failure of the Respondent and the Court to evidence claim”. It was alleged that the onus of proof on this ground rested on the father to demonstrate the “unsubstantiated claim” of the “self-evident fact that her daughter is not a child or person as defined in the Children Act 1989 or the Interpretation Act 1978”.

Ground 5: “Alleged bias comprising impartiality”. This relates to the fact that Poole J is the Family Presider for the North Eastern Circuit which includes the area covered by the Wakefield Family Court

Judgment

The Court of Appeal, Family Division, dismissed the mother’s appeal. The central line of reasoning was that the Children Act 1989 was intended to deal with the welfare of real human children, and since it could be concluded that AB was a child as such, the basis for the writ of habeas corpus fell away. The Court held, inter alia, that AB was not only a child, but also a person who was protected by, and subject to, the provisions of the 1989 Act. Further, the Court also concluded that AB was not, and had never been detained.

The Court considered the ordinary meaning of the word ‘person’ which is defined in the Oxford English Dictionary as, “an individual human being; a man, woman or child”, finding that the reference in the Interpretation Act to “person” including, ‘body of persons corporate or unincorporate’, was not intended to limit the ordinary meaning of the word by excluding human beings. Furthermore, the Court considered that the Children Act 1989 was introduced as, “an Act to reform the law relating to children”, and that the definition of a child as a ‘person’ must, and could only be, understood by the ordinary meaning of the word. It followed from this interpretation that the mother’s submission that a child was not a person was misconceived.

Moreover, the Court considered whether AB had been unlawfully detained, holding that AB had been living with her father with a prohibited steps order in effect against her mother, and it was impossible to see how a child in the care of another parent could be said to be detained.

Commentary

The Court of Appeal, when considering the law of habeas corpus had reviewed the case of Savage v Savage [2024] EWCA Civ 49 about inclusive and exclusive wording in statutory interpretation. It had been further noted in the Court of Appeal judgment that following the case of Re B-M (Care Orders) [2009] EWCA Civ 205 the writ of habeas corpus was obsolete in family proceedings. Although the mother had standing to bring an appeal, it was refused because the father was not detaining the child.

The mother made an application seeking to initiate an appeal to the Supreme Court (UKSC 2024/0084), with a date provisionally scheduled for hearing on 24 July 2024, however, the application was refused on the grounds that it was out of time and that the mother had not exhausted all other remedies.

Written by Katrina Deering