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The hearing and proceedings were conducted in the UK Supreme Court on 15th October 2024 and the judgment was issued on 29th January 2025.
Background:
Two children, aged 11 and 9, were placed in foster care under an interim order in October 2022. The Council’s plan was supported by the children’s guardian, despite both parents’ opposition, and the children’s wish to remain with their father. After a long-term foster care order in June 2023, the father invoked the writ of habeas corpus, arguing unlawful detention. The High Court and the Court of Appeal rejected his claim in 2024, directing him to appeal the care order. Instead, he appealed to the Supreme Court, again on the grounds of unlawful detention.
Legal Areas:
The case highlighted various legal areas in Family Law:
The Family Procedure Rules 2010 (FPR) govern how family law cases, including care proceedings, are conducted in court. Under FPR 30.3(7), permission to appeal is only granted if there is a real prospect of success or another compelling reason. FPR 30.4(2)(b) sets a 21-day time limit to file an appeal after the decision has been made.
The Children Act 1989 is the primary legislation covering the welfare and protection of children in care proceedings. It provides the legal framework within which family courts make decisions regarding children’s care and placement. Section 39(1) allows a parent to apply to discharge an existing care order.
In addition to FPR and the Children Act 1989, appeals may be made under the Matrimonial and Family Proceedings Act 1984, and the Administration of Justice Act 1960. Judicial review may also be sought under the Supreme Court Act 1981 in certain cases. These additional statutes offer alternative legal avenues to challenge family court decisions.
Habeas Corpus is a long-standing common law remedy used to challenge the unlawful detention of a person. Historically, it has been applied in cases involving imprisonment, such as the Five Knights’ Case (1627) and Somersett’s Case (1772). In this context, the father attempted to use Habeas Corpus to argue that the care order amounted to unlawful detention of his children.
Internationally, Article 8 of the European Convention of Human Rights (ECHR), protects the right to respect for private and family life, home, and correspondence. Interference with this right must be lawful, necessary, and proportionate in a democratic society. The father’s argument implied that the care order may have breached his Article 8 rights by unjustifiably disrupting his family life.
Proceedings:
The Family Court
On June 9, 2023, District Judge Solomon issued a care order under section 31 of the Children Act 1989, placing the children under the care of Worcestershire County Council due to risks of significant harm from parental issues, including domestic abuse, substance misuse, and the father’s criminal record. The decision prioritized the children’s welfare in line with section 1(1) of the Children Act 1989, and reflected the ‘no order principle’ and welfare checklist which includes:
(a) the welfare principle in section 1(1), that the child’s welfare is the court’s paramount consideration
(b) the factors in section 1(3)(a)–(g), such as the child’s wishes and feelings (in light of their age and understanding), and each parent’s ability to meet the child’s needs
(c) the principle in section 1(2), that delay is likely to prejudice the child’s welfare
(d) the principle in section 1(5), that any court order should be the minimum necessary to achieve the welfare objective.
DJ Solomon also considered the Article 8 rights of the children and parents under the Human Rights Act 1998, and found no breach, as the interference was lawful, pursued a legitimate aim, and was necessary in a democratic society.
High Court:
Having decided not to apply for permission to appeal the Care Order, the father, without legal representation, applied to the High Court for a writ of Habeas Corpus. On 15 April 2024, Mrs. Justice Russell dismissed the application for Habeas Corpus on the grounds that the care orders had been made lawfully. If the father wished to appeal, to deal with the care order, he had to appeal or make other applications under the Children Act 1989. Mrs. Justice Russell stated that the writ of Habeas Corpus is hardly ever used anymore, because there is statutory provision that had to be used first.
The Court of Appeal:
The father appealed to the Court of Appeal under section 15 of the Administration of Justice Act 1960 and rule 30.3(2)(c) of the FPR, which allowed him to do so without leave, as this was a habeas corpus application concerning a minor. On 20 June 2024, the Court found the High Court hearing procedurally unfair (as the judge did not allow the father to explain himself or give reasons for the decision), and set aside its ruling. The father argued that a care order was invalid due to unmet conditions under section 31(2) of the Children Act 1989. The Court clarified that appealing or seeking discharge of the care order didn’t imply acceptance of its validity, confirmed the care order was valid, and stated that habeas corpus was not the right legal approach. It dismissed the father’s application as “inappropriate” and “wrong,” agreeing with the High Court that challenges should follow proper statutory processes.
Judgment:
The Supreme Court clarified several key legal issues regarding care orders:
- Jurisdiction and Authority
The Court ruled that the care order was valid despite being filed in the name of a company (Worcestershire Children First Ltd) rather than the local authority. This was a correctable procedural error, as the substance of the application showed it was made by the proper authority. - Threshold for Care Orders
The Court upheld the care order, affirming that the children met the threshold for significant harm under section 31(2) of the Children Act 1989, citing domestic violence, substance misuse, and a criminal record. First-instance factual findings were respected. - Correct Legal Remedy
Challenges to care orders must be pursued via appeal or an application to discharge the order—not through habeas corpus. These statutory routes are designed to ensure child welfare and due process. - Use of Habeas Corpus
Habeas corpus remains a constitutional safeguard but is inappropriate where a lawful care order exists. It only applies if that order is first overturned, which must be done through available statutory remedies. - Limits of Habeas Corpus
Though not excluded by statute, habeas corpus is practically unavailable when adequate legal alternatives exist. The Court reinforced the principle of procedural exclusivity in public law. - Detention
Children placed in foster care under a care order are not legally “detained.” Living in a domestic setting under foster care is not equivalent to loss of liberty. Exercising parental responsibility in this context does not amount to unlawful detention. - Procedural Safeguards
The Court stressed the importance of process. Habeas corpus applications require a “real prospect of success” based on extreme or unusual circumstances. The statutory regime already provides comprehensive oversight, and only systemic failures could support such a claim. Judges may adjourn cases to allow the local authority to address concerns.
As a result, the father’s appeal was dismissed, the care order was valid, and challenges were to proceed through statutory mechanisms and not habeas corpus.
Commentary:
The case underscores the limitations of using habeas corpus in family law, clarifying that foster care does not amount to detention. It emphasizes that disputes over care orders should follow proper legal channels—like appeals or discharge applications—to protect children’s welfare. Unlike habeas corpus, the FPR appeal process involves all parties, including the father, the Council, and a guardian appointed to represent the children’s best interests under the Children Act 1989. This ensures the court can make a well-informed decision with the children’s welfare as the paramount concern.
Written by Emma Hewins
