The Supreme Court has dismissed a father’s challenge to a local authority care order which he based on the remedy of habeas corpus. Family law specialists said today's judgment in The Father v Worcestershire County Council clarifies the scope of the historic doctrine in family proceedings.

In 2022, the family court made an interim care order that placed the father’s children in foster care. The father did not appeal the order because he thought it would mean he accepted that the order was valid. He also thought, because he did not think the order was lawful, he could not apply to have the order discharged. The interim care order remains in force.

In a judgment handed down today, the Supreme Court explained that under the care order, parental responsibility was shared between the council and the children’s parents, so the father could have applied to discharge the order. 

Five justices agreed that the lawfulness of a care order is relevant in an application for habeas corpus only if the order is for the ‘detention’ of a child. Habeas corpus may be an appropriate remedy where, for instance, foster parents locked a child in their bedroom for a month. However, the Supreme Court said the child would be released from the foster parents, not from the local authority’s care.

The availability of habeas corpus would be ‘extraordinarily limited as there must be an allegation of extreme or unusual circumstances amounting to the unauthorised detention of a child’, the Supreme Court said. For the claim to have a real prospect of success, there would have to be failures within the regime for looked-after children, the court added.

The father represented himself in the Supreme Court proceedings.

Although his appeal was dismissed, the Supreme Court said: ‘We pay tribute to the polite way in which he presented his appeal in this court, and we acknowledge his concerns about and his feelings for his children.’

Commenting on the significance of today's judgment, Tony Roe, a partner at Dexter Montague, said the Supreme Court’s ruling left the door in relation to habeas corpus slightly ajar. ‘Nevertheless, bearing in mind the elaborate and carefully balanced procedures contained within the Children Act 1989, the scope for habeas corpus claims in relation to children is limited, save in perhaps in wholly exceptional cases,' Roe said.

 

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