In January of this year, a father had his appeal against the imposition of a care order imposed against his children heard in the Supreme Court, his application was submitted on the argument of habeas corpus.
The term habeas corpus is Latin in origin, with a literal translation of “you shall have the body”. In summary this is a legal writ which requires authorities to justify the detention of an individual before the Court.
This case involved a family who were subject to proceedings which eventually culminated in the imposition of a care order.
The case commenced in 2022, and the children were made subject to Interim Care Orders. The children were placed in foster care. The Father did not appeal the order. He instead believed that the care order which was eventually imposed was unlawful.
In April 2024, the application that the father submitted was dismissed. This was on the basis that the process he followed was simply incorrect. The Judge dealing with the case stated that the correct process was for him to appeal the Care Order and submit that the writ was both inappropriate and wrong.
Following this the Father then appealed to the Court of Appeal. The Court of Appeal heard the matter and again dismissed the argument on two grounds, the first is simply that this was not the correct process for such a request and as stated by the lower Court Judge, he should have submitted an application to appeal the making of the order.
However, the second ground specifically addressed the argument of habeas corpus. The Court of Appeal stated that a care order does not amount to detention, which therefore in their view rendered the application to be considered.
The Father then appealed the matter again to the Supreme Court following the decision. The Supreme Court came to a conclusion which was very similar to the Court of Appeal. They stated again the correct procedure would have been for the father to either apply for the order to be discharged, or to appeal the making of the order.
The reasoning behind this decision, is that in those instances the matter will be dealt with by the Family Court. As such this would mean a Guardian would be appointed for the child/children in the matter, under Section 41(2) of the Children’s Act, this would allow for a voice of the children to be present and for their interests to be represented by a person who is under a duty to safeguard the children’s interests, and who can act independently.
In relation to the arguments surrounding habeas corpus the Supreme Court in summary decided that a Care Order, allows the Local Authority to share Parental Responsibility with parents, albeit the Local Authority hold the majority of parental responsibility. This means that the Local Authority can make decisions regarding the children’s care arrangements. They do mention that there is a debate as to whether the Local Authority in that instance, can consent to a deprivation of liberty order, that type of order authorises a child to be held in a secure accommodation and deprives the child of their liberty.
However the Court clarify this is not a case of that nature. They stated the children in this matter are not detained, they live in the same foster placement and they state that there is no suggestion that there are any “extreme or unusual factual circumstances” around the exercise of the foster parents’ authority. Nor is there any suggestion that the Local Authority has exercised its parental responsibility to deprive the children of their liberty which may amount to detention. They agree with the view of the Court of Appeal which was that the children are simply living with foster parents, in accommodation that other children of those ages would be.
It is important to note that in the Judgment, the Supreme Court do not dismiss habeas corpus claims, they clarify that it is something that is not “obsolete” but the scope for such claims in relation to children is limited, they state they may only be viable in “wholly exceptional cases”. This is due to the procedures which have been put in place within the Children Act 1989, which is the act which they reference in why such an application was done by way of an incorrect procedure.
For any further assistance in respect of legal matters involving care proceedings, then please contact a member of our dedicated public law team who will be happy to assist.
