Key Facts
- •Mother (SJ) appeals dismissal of habeas corpus writ seeking return of daughter (AB) from father (DH).
- •Child arrangements orders granted to father in 2022, prohibiting mother's contact.
- •Mother argues AB is not a 'person' under Children Act 1989, thus court lacks jurisdiction.
- •Mother alleges unlawful detention due to lack of jurisdiction and procedural irregularities.
- •Father did not participate in appeal proceedings.
- •Mother represented herself with an informal McKenzie friend.
- •Prior proceedings involved allegations of neglect and the child being found after being reported missing.
Legal Principles
Third parties can apply for habeas corpus, even if prohibited from exercising parental responsibility.
The Law of Habeas Corpus by Farbey, Sharpe and Atrill (3rd edition), p237
Interpretation Act 1978's definition of 'person' is inclusive, not exclusive; it extends the ordinary meaning, not limits it.
Robinson v Barton Eccles Local Board (1883) 8 App Cas 798; Bennion, Bailey and Norbury on Statutory Interpretation (8th Edition), section 19.8
'Expressio unius est exclusio alterius' (mentioning one thing excludes others) is not an absolute rule and shouldn't be applied rigidly, especially when there's a contrary intention.
Savage v Savage [2024] EWCA Civ 49; Bennion, Bailey and Norbury on Statutory Interpretation (8th Edition), [20.1] and [23.13]
Habeas corpus is largely obsolete in family proceedings; challenges to care orders should be made through appeals or applications within the care proceedings.
Re B-M (Care Orders) [2009] EWCA Civ 205; S v Haringey London Borough Council [2003] EWHC 2734 (Admin)
Litigants in person are expected to familiarize themselves with applicable rules, although allowances might be made in case management.
Barton v Wright Hassall LLP [2018] UKSC 12
Outcomes
Appeal dismissed.
The court found that the mother's central argument – that a child is not a 'person' under the Children Act 1989 – was misconceived. The child is a person subject to the Act, and the 2022 orders were lawful and unchallenged via proper channels. Therefore, there was no unlawful detention.
Permission for judicial review refused.
The application was out of time, remedies were available within the Family Court, and the application was considered inappropriate given the mother's available recourse.