AB (A Child : Habeas Corpus)

Factual and Procedural Background

This appeal arises from a decision of Mr Justice Poole in the Family Division of the High Court dismissing a writ of habeas corpus application brought by the Appellant, the mother, seeking the return of her daughter to her care. The daughter currently resides with the Respondent, the father, pursuant to child arrangements orders made and confirmed in early 2022. The mother contends that the daughter is not a "person" under the Children Act 1989 and thus the court lacks jurisdiction, further alleging unlawful detention by the father.

The background involves acrimonious litigation between the parents. The daughter was reported missing by the father in late 2020 and was located in January 2022 in the care of a group called the Universal Law Community Trust (ULCT), with whom the mother lived. Following police intervention and a series of court orders, the daughter was placed with the father under child arrangements and prohibited steps orders that barred the mother from contact or exercising parental responsibility.

The mother did not attend initial hearings, and attempts to challenge the orders through civil procedural forms (N244) were unsuccessful and inappropriate for family proceedings. The habeas corpus application was ultimately transferred to the Family Division and dismissed both on paper and after an oral hearing. The mother appeals that dismissal.

Legal Issues Presented

1. Whether the daughter is a "person" within the meaning of the Children Act 1989, thereby granting the court jurisdiction to make child arrangements orders.
2. Whether, notwithstanding the lawful child arrangements orders, the daughter is being unlawfully detained by the father, justifying a writ of habeas corpus.
3. Whether there was judicial bias in the original decision due to the judge's professional association with the local family court.
4. Whether the mother is entitled to permission to pursue judicial review of the family court orders.

Arguments of the Parties

Appellant's Arguments

• The daughter is not a "person" as defined by the Children Act 1989 or the Interpretation Act 1978, rendering the court’s jurisdiction under the Children Act invalid.
• The child arrangements order placing the daughter with the father is therefore illegal, and the daughter is unlawfully detained.
• The judge breached his judicial oath and failed to uphold the rule of law by rejecting the appellant’s interpretation of the law.
• The application was dismissed without proper deliberation on alleged violations of Convention or constitutional rights.
• The father bears the onus to prove the daughter is a person under the law, which the appellant asserts has not been met.
• Alleged judicial bias due to the judge’s role as Family Presider for the relevant circuit.
• The appellant also sought judicial review, including quashing and mandatory orders, but did not develop this argument in oral submissions.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent’s legal arguments, as the father did not participate in the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the daughter is a "person" under the Children Act 1989. The appellant argued that the Interpretation Act 1978’s inclusive definition of “person” as including bodies corporate excludes natural children by expressio unius est exclusio alterius. The court rejected this, explaining that the Interpretation Act’s definition is inclusive and does not restrict the ordinary meaning of “person” to exclude natural persons. The ordinary meaning includes human beings, including children.

The court relied on authoritative texts on statutory interpretation and recent case law, including Savage v Savage, which emphasized that statutory words must be given their ordinary meaning in context and that interpretative canons like expressio unius are not absolute and should be applied flexibly. The Children Act 1989’s paramount welfare principle for children under 18 confirms that children are natural persons within the Act’s scope.

Next, the court considered whether the daughter was unlawfully detained. It applied established authorities, notably S. v Haringey London Borough Council, holding that lawful child arrangements orders do not amount to detention for habeas corpus purposes. The daughter living with her father under court orders does not constitute unlawful detention.

Regarding judicial bias, the court applied the Porter v Magill test and held the judge’s professional association with the local family court did not create a real possibility of bias.

Finally, the court considered the appellant’s application for judicial review. It was out of time, and the appellant had not exhausted available family court remedies, including applying to vary the child arrangements order. The court refused permission accordingly.

Holding and Implications

The appeal is dismissed.

The court held that the daughter is a natural person under the Children Act 1989, and the family court had jurisdiction to make the child arrangements orders. The orders placing the daughter with the father are lawful, and she is not unlawfully detained. The writ of habeas corpus was therefore misconceived. Judicial bias was not established, and the application for judicial review was refused as out of time and premature. The appellant retains the ability to pursue variation of the child arrangements order through appropriate family court procedures.

No new legal precedent was established; the decision reinforces established principles regarding the definition of “person” in family law and the inappropriateness of habeas corpus as a remedy for child arrangements disputes.