Habeas corpus refused
Ancient remedy cannot be used to bypass the Children Act
A father who brought a claim for habeas corpus after his children were placed in long-term foster care lost an appeal to the UK Supreme Court yesterday. Five justices decided that the ancient remedy — “a procedural mechanism of central importance in securing the liberty of the individual”, as they described it — did not apply in this case because the children had not been “detained”.
The judges held that “the scope for habeas corpus claims in relation to children is limited, and (save perhaps in wholly exceptional cases) there is no possibility for them to be used to cut across the elaborate and carefully balanced procedures contained within the Children Act 1989”.
Lord Sales and Lord Stephens — with whom Lord Reed, Lord Leggatt and Lady Simler agreed — said they had
no sense of regret in relation to the outcome of this appeal given that the remedies which are available to a person in the position of the father, of an appeal against the care order or of an application to discharge the care order, are carefully calibrated to protect children either by ensuring that they are returned to their families or by ensuring that they are not exposed to significant harm.
The procedures to be followed in the family court in applying for such remedies have also been carefully worked out to ensure that the court is able to establish what are the best interests of a child as regards where or with whom the child should live.
Background
The care order was made by District Judge Solomon at the family court in Worcester in June 2023. It relates to two children who are now aged 11 and nine.
Their unmarried parents do not live together. The district judge referred to a history of domestic violence, the father’s criminal history as well as drug and alcohol abuse before concluding that “it would be neither safe nor in the children’s welfare interest for them to be returned to mother or father”.
As I explained here last year, the unnamed father’s first application to a High Court judge for habeas corpus last year resulted in a hearing that the Court of Appeal subsequently described as “blatantly unfair”. Ms Justice Russell’s ruling demonstrated “a complete failure of proper judicial process”, the appeal judges had added.
“This part of its ruling is not the subject of any cross-appeal” by Worcestershire County Council, the Supreme Court said drily. It observed that the Court of Appeal had then considered the matter afresh before again dismissing the self-represented father’s claim for habeas corpus.
Challenge
As I hinted in a paragraph published at the end of last month, the challenge facing the Supreme Court was to find a way of preventing litigants from misusing the habeas corpus jurisdiction, given that there is no requirement to seek permission and so nothing to stop cases with little prospect of success from taking up valuable time in the courts.
The justices achieved that by holding that an applicant seeking habeas corpus to free anyone detained by order of a court must use the judicial review procedure to apply for a quashing order. An order of this kind is potentially available if the original order had been made in a court of limited jurisdiction, such as the family court. But it could not be used, said the justices, if there was a suitable alternative remedy — as there was here:
If the individual wishes to challenge the detention order in circumstances where there is a right of appeal, they are obliged to do so by way of appeal and are precluded from doing so by judicial review.
In addition, a claimant seeking judicial review must first apply for permission to proceed, which will not be granted unless the claimant has a good arguable case.
Conclusion
Upholding the judgment of Solomon, all five justices concluded that
the father was not entitled to seek to challenge the care order by applying for habeas corpus;
he was not entitled to challenge the care order by way of judicial review, because he had a suitable alternative remedy available to him — a right of appeal or an application to discharge; and
his claim for habeas corpus was therefore bound to fail.
Before 1997/8 every appeal to the House of Lords required security for costs. That should never have been abrogated and should be restored. For the Respondent’s full costs, assessed if not agreed, by insurance.
I think the Judgment of Solomon is the future. I am expecting a new part of the Family Procedure Rules to amplify its real benefits: 5 minute hearings, no lawyers, very cheap and great stats.