Innovative use of habeas corpus fails to win over Justices

In The Father v Worcestershire County Council [2025] UKSC 1, a father of two children applied for a writ of habeas corpus seeking their release from ‘detention’ by the council, which had placed them in care. The care plan for the children was for them to be in long term foster care. The High Court dismissed the application on the basis the correct process was for the father to appeal the care order. The Court of Appeal dismissed the claim for habeas corpus on the same ground and also because a child living with foster parents under a care order is not detained but is simply living in the same type of domestic setting as any other child of their age would be’.

The father, who is self-represented, appealed to the Supreme Court, arguing, first, the children were detained by the care order, and second, the care order was unlawfully made because it was issued by a limited liability company, Worcestershire Children First Ltd, rather than by a local authority or authorised person. Third, he argued the placement was made without jurisdiction because the Children Act 1989 threshold condition had not been satisfied.

The father’s appeal was unanimously dismissed by the five Justices hearing the case. Delivering the main judgment, Lords Sales and Stephens discussed in detail the law of habeas corpus, how it pertained to looked after children and how a family court judge should approach an application for habeas corpus. They said: ‘If the father wished to challenge the care order, he was obliged to do so using the procedural route specifically created by legislation for that purpose, namely the right of appeal within the Family Court.’

They concluded: ‘We do not consider that it is accurate to say that habeas corpus has no role to play or is “obsolete” in relation to family proceedings… The fact that the FPR [Family Procedure Rules] include provision for habeas corpus claims to be brought in relation to children bears this out. Nonetheless, the analysis above shows 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.’