Re AB (A Child) (Habeas Corpus)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lady Justice Falk,Lord Justice Lewison |
| Judgment Date | 14 February 2024 |
| Neutral Citation | [2024] EWCA Civ 105 |
| Year | 2024 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2023 001968 |
[2024] EWCA Civ 105
Lord Justice Lewison
Lady Justice King
and
Lady Justice Falk
Case No: CA 2023 001968
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION
Mr Justice Poole
FD23F00044
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared In Person.
The Respondent did not attend and was unrepresented.
Hearing date: 1 February 2024
Approved Judgment
This judgment was handed down remotely at 11.00am on 14 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal is brought by the Appellant, SJ (“the mother”), against a decision of Mr Justice Poole, sitting in the Family Division of the High Court. By an order dated 22 September 2023, the judge dismissed the mother's writ for habeas corpus by which she sought the return to her care of her daughter AB. AB currently lives with the Respondent, DH (“the father”), by virtue of a child arrangements orders made on 21 January 2022 and confirmed on 27 May 2022.
At the heart of the case are two central contentions made by the mother: i) that AB is not a person for the purposes of the Children Act 1989 (“CA 1989”) and that as a consequence, the courts have no jurisdiction to make any orders under that Act; and ii) in those circumstances AB is being “unlawfully detained” by the father, notwithstanding the making by the Family Court at Wakefield of the child arrangements and prohibited steps orders on 27 May 2022 providing for her to live with her father and to have no contact with the mother.
As a writ of habeas corpus relates to the liberty of the subject, permission to appeal against the refusal to make an order does not require the granting of permission to appeal (Section 15(1) of the Administration of Justice Act 1960). It follows that the mother appeals as of right and there has been no consideration as to whether pursuant to CPR52.6(1)(a) and (b) the appeal would have a real prospect of success or whether there is some other compelling reason for the appeal to be heard.
The father has taken no part in these proceedings. The mother appeared before the court as a litigant in person assisted by an informal McKenzie friend. She made her submissions courteously and with dignity but was clearly in some considerable distress at her continued separation from her daughter.
Background
The parties were involved in long running and acrimonious litigation in relation to AB who then lived with the mother. In December 2020 the father reported AB, then a little over three years old, as missing.
It was not until 18 January 2022 that AB was located in Port Talbot following a neighbour having raised concerns about her care to the authorities. The mother was living in a property leased to a group called the Universal Law Community Trust (ULCT). The mother lived with the group from whom she says she has received considerable support. Having been found, AB was made subject to Police Powers of Protection. She was placed overnight with the local authority, but on the following day, 19 January 2022, she was taken to her father with whom she has remained ever since. The mother was arrested and subsequently bailed.
A case management order was made on 21 January 2022 before DJ McLaughlin at Wakefield. The mother did not attend. The father and solicitors instructed to represent AB were present. The order records that the mother had not been served, her whereabouts was unknown although it was believed that she might now be at a caravan in Port Talbot, notwithstanding that she was on police bail to a property in Castleford.
By the order of 21 January 2022, AB was to live with the father until further order with no contact to the mother. A prohibited steps order was made prohibiting the mother from taking any steps ‘in the exercise of her parental responsibility in respect of [AB] until further order.’
The local authority were directed to carry out a s37 Children Act assessment of AB which was to include trying to ascertain where AB and her mother had been living and to assess the role ULCT had had in her life, including a consideration of any harm AB may have suffered as a consequence of the organisation's involvement in her life.
The order set out the following in bold typescript: “If you were not told about the hearing you may ask the court to reconsider this order”. Ramsdens solicitors, who represented AB, sent a message to the mother which she received (and she has included in her bundle) telling her of the date for the next hearing due to take place on 7 February 2022 and that she had been ordered to attend. The mother filed a document entitled ‘Statement of Truth’ for that hearing. This was a lengthy document filed by someone identifying themselves as “Minister Emoven 1842, a Minister of the ULTC”, who described himself as the “once creditor of legal person entity account [SJ]”.
The Court has not seen an order for 7 February 2022 and the next order shown to this Court is dated 27 May 2022, a hearing, again before DJ McLaughlin. The father appeared in person, the guardian was present as was a local authority solicitor. The mother was not present. The Cafcass report prepared on behalf of AB set out a number of concerns about the mother including her involvement with ULTC.
The order once again records that if she was unaware of the hearing, the mother could ask for the reconsideration of the order. The order was in largely the same terms as that made on the 21 January. This Court has only the most limited information as to the matters which fed into the district judge's welfare analysis. I do not know, therefore, what features led to an order being made in these unusually draconian terms in that the mother is not allowed to know where AB is living, to have any information as to her educational progress, to have any contact with AB or to exercise her parental responsibility in any way. The fact remains however that for the reasons set out below, this is a lawful order which remains in force and which has not been the subject of an appeal.
The mother told the court that she had not received copies of the orders until recently and it was for that reason she had not filed a notice of appeal or made an application for a reconsideration of the order. What she did do, however, was on 10 October 2022, file at the Wakefield Civil Justice Centre a N244 Application Notice seeking an order to “set aside/void all orders derived from FD20P00486 ab initio, nuc pro tunc”. The mother told this Court that other than a request to provide some information necessary for fee remission, she has had no further contact from the Civil Justice Centre and she has had no notice of the listing of her application.
I have no idea why the mother has heard nothing from the Civil Justice Centre at Wakefield in relation to her N244 application. It should however be noted that N244 is one of the suite of civil court forms applicable to applications in the County Court. These forms are not used in the Family Court. Where an application for the discharge or variation of a Child Arrangements Order is made, it is started under the Family Procedure Rules 2010 r.5.1 on a form called the C100. It follows that the Family Court would have had no reason to be aware of this application which, given its terms, would not in any event facilitate a reintroduction of the mother to AB.
The mother told the court that having made no progress through the N244 route, she made the present application for habeas corpus on 19 June 2023. The application was transferred to the Family Division by Hill J on 21 June 2023 pursuant to the Senior Courts Act 1981, Schedule 1, para.3(aa). The application for a writ was dismissed on paper pursuant to CPR rule 87.4(f) by Poole J on 27 June 2023 and again dismissed pursuant to CPR 87.5(f) following an oral hearing on 22 September 2023, the order being sealed on 16 October 2023.
The Court has seen a transcript of the hearing which took place before Poole J. The hearing, no doubt because the application was misconceived and had to be dealt with in the midst of a busy court day, was conducted robustly by the judge.
Standing to apply for a writ of habeas corpus
The circumstances in which a third party may apply for a writ of habeas corpus is considered in The Law of Habeas Corpus by Farbey, Sharpe and Atrill (3 rd edition). At p237 it is said by the authors that it is desirable for there to be flexible rules governing applications for a writ of habeas corpus:
“If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts. To a certain extent, the technical nature of habeas corpus rejects this need. The writ issues in the name of the sovereign and represents the prerogative power to have an account of any subjects who are imprisoned. The applicant, whether the prisoner or simply a concerned third party, is, strictly speaking, not so much a party to the proceedings as an informant.”
In my judgment it follows that regardless of the merits, there was nothing to prevent the mother from initiating these proceedings notwithstanding that the order of 27 May 2022 says that “the mother is prohibited from taking any steps in the exercise of her parental responsibility in respect of the child until further order”.
The order made by the judge following the oral hearing on 22 September 2023, records that the mother had confirmed to him that she had not sought to appeal the orders of 1 January 2022 or 27 May 2022 and that he had reminded her that the Court was not an appellate court. The critical part of the order goes on:
“ AND UPON...
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...it was wrong. Further, as Munby J explained in S v Haringey LBC [2003] EWHC 2734 (Admin) (recently endorsed by this court in Re AB (a child) (Habeas Corpus) [2024] EWCA Civ 105) a child living with foster parents under a care order is not detained but is simply living in the same type of ......