Court of Appeal Rules Child is a Person under Children Act 1989, Dismisses Habeas Corpus Application

Citation: [2024] EWCA Civ 105
Judgment on

Introduction

The Court of Appeal (Civil Division) issued a pivotal judgment concerning the case of AB (a child) ([2024] EWCA Civ 105), where the appellant SJ, the mother, challenged the legality of her daughter, AB’s living arrangements, which were awarded to the father, DH. The court had to consider whether the writ of habeas corpus was an appropriate remedy for challenging child arrangements orders made under the Children Act 1989 and whether a child was a “person” under the said Act.

Key Facts

The mother, SJ, contended that AB was not a “person” for the purposes of the Children Act 1989, and therefore the courts had no jurisdiction to make orders under that Act concerning AB. She claimed that as a result, AB was being unlawfully detained by the father. The writ of habeas corpus, she argued, was the correct means to seek the return of her daughter to her care. This appeal followed the refusal of her writ application by Mr Justice Poole.

The legal representatives for AB were present throughout the proceedings, while SJ appeared in person, assisted by a McKenzie friend, and the father, DH, did not attend and was unrepresented. The case proceeded under the assumption that children are subject to court jurisdiction for welfare considerations under the Children Act 1989.

The court applied several legal principles in the adjudication of this case:

  1. Inclusive Interpretation of “Person”: The mother’s argument based on the Interpretation Act 1978’s definition of “person” was thoroughly considered. It was determined that the definition—which includes bodies corporate and unincorporate—did not exclude human beings, and thus a child, being a human under the age of eighteen, is a person for the purposes of the Children Act 1989.

  2. Jurisdiction over Children: It was reaffirmed that children are indeed subject to the jurisdiction of the courts under the Children Act 1989, which is designed to legislate for the welfare of children under eighteen. This runs contrary to the mother’s claim that the Act did not apply to her daughter.

  3. Misuse of Habeas Corpus: The court looked at the appropriateness of habeas corpus as a remedy for the situation at hand, rejecting its use in the context of family law where a child is placed lawfully in the care of a parent (Referencing Re B-M (Care Orders) and S. v Haringey London Borough Council).

  4. No Existence of Detention in Lawful Court Orders: The court observed there was no detention in the sense applicable for habeas corpus as AB was living with the father under a lawful court order.

  5. Correct Forum for Redress: The court noted that the mother had other avenues to pursue her grievances, such as an application to vary the child arrangements order or an appeal, therefore the application for a writ of habeas corpus was misconceived.

Outcomes

The appeal was dismissed, with the Court of Appeal agreeing that the child, AB, is a person under the Children Act 1989 and subject to court orders made pursuant to it. The application for habeas corpus was concluded to be misconceived as the child is not unlawfully detained when residing with a parent under a lawful order. Furthermore, the application for judicial review was also refused, with the court advising that the proper recourse lay within the family court through an alternate legal process such as an appeal or variation of the existing order.

Conclusion

In conclusion, the case confirmed the broader legal principle that the term “person” within the Children Act 1989 encompasses children, engaging the jurisdiction of the family courts in matters of their welfare. It also served to clarify the inappropriate use of habeas corpus within the realm of family law, particularly when remedial measures exist within the act itself for challenging and varying orders. This case reaffirms the superior jurisdiction of family courts in child welfare cases, and provides a clear precedent on the application of habeas corpus in family law matters.

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