Supreme Court dismisses application by father for writ of habeas corpus over children in care

The Supreme Court has rejected a father’s application for a writ of habeas corpus in respect of his children, who are being raised in a local authority’s care.

In The Father v Worcestershire County Council [2025], Lord Sales and Lord Stephens concluded that neither child is detained and therefore the father’s application cannot succeed.

Further, considering whether habeas corpus could be used if the children were detained, the court unanimously concluded that it could not, and that other remedies, such as an appeal, should be used to challenge a care order.

A writ of habeas corpus is a historic court order which, if granted, requires the release of a detained person.

Outlining the background to the case, the Supreme Court judges stated: “The appeal in this case concerns an application made in March 2024 by a father of two children for a writ of habeas corpus seeking their release from what he contends is their detention by Worcestershire County Council, in whose care the children have been placed under a care order made by DJ Solomon in the Family Court on 9 June 2023, under the Children Act 1989.

“The care plan for both children is for them to be in long term foster care and currently they are living with the same foster parents.”

The father did not pursue a statutory appeal against the order under the Children Act 1989, but applied for a writ of habeas corpus for the return of his children.

On 15 April 2024, his application was dismissed at a brief hearing in the High Court, on the basis that the “correct process” was for the father to appeal the care order and applying for the writ was “inappropriate” and “wrong”. The father appealed.

On 20 June 2024, the Court of Appeal found that the High Court hearing had been “procedurally unfair” and set aside the decision.

The Court criticised the High Court judge for her “blatantly unfair conduct”, finding that an interchange with the father demonstrated a “complete failure of proper judicial process”.

However, following this, the Court of Appeal considered the matter afresh and dismissed the father’s claim for habeas corpus on two grounds.

It found that first, the father’s application for a writ of habeas corpus was not the correct process, and second, the children were not detained.

The Court of Appeal was satisfied that as a matter of law, the district judge's ultimate conclusion was correct, and therefore dismissed the father’s application. The Father appealed to the Supreme Court.

Lord Sales and Lord Stephens said: “The father now appeals to this court, without any requirement to obtain leave, pursuant to his right of appeal under section 15 of the Administration of Justice Act (AJA) 1960.

“In this court, as in the Court of Appeal, the father raised various matters in the written material which he placed before the court. However, in his oral submissions he identified the fundamental points upon which he relied.

“First, he contended that by virtue of the care order the children were detained in their foster placement by the Council.

“Secondly, he contended that the care order placing the children in the care of the Council was unlawful because the application for a care order was not made by a local authority or an authorised person as it must be by virtue of section 31(1) of the Children Act 1989. Rather, he submitted the application had been made by a limited liability company, Worcestershire Children First Ltd, so that the care proceedings had not been properly initiated.”

The Supreme Court judges added: “In support of this contention, the father relied on the initial statement, dated 25 October 2022, made by the social worker in which she identifies the local authority as “Worcestershire Children First” and in which she states that she is employed by “Worcestershire Children First” and that it was seeking an interim care order in respect of the children.”

Thirdly, the father contended that the order of DJ Solomon, placing the children in the care of the local authority, was made without jurisdiction because the threshold condition in section 31(2) of the Children Act 1989 had not been satisfied.

In response, the council contended that the children are not detained, for the reasons given by the Court of Appeal.

The council acknowledged that, because of an error, the social worker in her initial statement referred to ‘Worcestershire Children First’ rather than to the council. However, the council submitted that this error was “not reflected” in the application for the care order, in which the applicant was correctly identified as the council rather than Worcestershire Children First Ltd or Worcestershire Children First.

The Supreme Court judges noted: “Therefore, the Council contends, and we agree, that the proceedings were in fact commenced by a local authority in accordance with section 31(1) of the Children Act 1989.”

Thirdly, the council submitted that DJ Solomon was not wrong in her threshold factual findings, and that an application for a writ of habeas corpus is not the correct process for challenging those findings or the order which has been made.

Analysing the case, Lord Sales and Lord Stephens noted that habeas corpus is “a means by which the liberty of the individual is vindicated”.

Therefore, on an application for habeas corpus, the lawfulness of a care order is “only relevant” if it is an order for the detention of a child or an order under which a local authority may, in the exercise of parental responsibility, consent to the deprivation of a child’s liberty amounting to detention.

The judges observed: “In this appeal the father has assumed that the care order is an order for the detention of the children or an order under which a local authority may, in the exercise of parental responsibility, consent to the deprivation of the children’s liberty amounting to detention.

“[…] It is sufficient for the purposes of this appeal to state that if, as the father has assumed, a care order is an order for the detention of the children or an order under which the Council may, in the exercise of parental responsibility, consent to the deprivation of the children’s liberty amounting to detention, then, on an application for habeas corpus:

1. the care order would be lawful authority for the children’s detention and a complete defence to the application unless the order was set aside by some appropriate procedural route;
2. ordinarily the applicant would have to bring judicial review proceedings, in aid of the habeas corpus application, to quash the care order;
3. permission to bring an application for judicial review would be refused if, as here, there was a suitable alternative remedy by way of an appeal against, or an application to discharge, the care order; and
4. in such circumstances the application for habeas corpus would be dismissed.”

Lord Sales and Lord Stephens noted that the ordinary exercise of parental responsibility under a care order by a local authority, or the foster parents’ exercise of their delegated authority, will not deprive a child of liberty amounting to detention.

They observed that in some extreme or unusual circumstances, the improper exercise of parental responsibility by a local authority, or delegated authority by foster parents, may result in the deprivation of a child’s liberty amounting to detention.

In such cases, the writ of habeas corpus will be an appropriate remedy. However, the appropriate order would be for the child to be released from the unauthorised detention, not that the care order should cease to have effect.

Finding that the children in this case are not detained, the Supreme Court judges concluded: “The children are living together in the same foster placement. It is not suggested that there are any extreme or unusual factual circumstances in this case in relation to the exercise of the foster parents’ delegated authority.

“Furthermore, it is not suggested that the Council has exercised its parental responsibility to deprive the children of their liberty amounting to detention. Rather, as it was put in Re S (Habeas Corpus) at para 28, the children ‘are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives’. We would therefore dismiss the appeal on the ground that the children are not detained.”

Turning to the issue of whether habeas corpus can be used where a care order results in detention, the judges noted: “The main object of the writ of habeas corpus for release, and the reason for its constitutional importance, is to provide a speedy and effective remedy in cases of unlawful detention.

 “[…] In view of the constitutional significance of habeas corpus and of the importance of the protection of individual liberty, and having regard to the principle of legality, it would require a very clear provision in primary legislation to remove the right to apply for habeas corpus to achieve the object referred to above.”

The judges found that habeas corpus cannot be used to challenge the lawfulness of a court order since the writ is directed to the person who holds the individual in detention rather than to the court which has made the order.

Accordingly, to succeed on an application for habeas corpus where detention is authorised by a court order, the applicant will first need to challenge the lawfulness of this order by other means.

The judges considered whether judicial review would be available to challenge the lawfulness of a care order authorising the detention of a child.

They noted that Judicial review would not be available to challenge an order made in the High Court as it has unlimited jurisdiction, therefore, an appeal or a request for reconsideration is the route to challenge such an order.

In contrast, the Family Court is of limited jurisdiction and could therefore be subject to judicial review. However, judicial review will only be granted if there is no suitable alternative remedy.

The judges added: “Where there is a statutory right of appeal in respect of an order, that is regarded as a suitable alternative remedy (save in exceptional circumstances) and will operate as a defence to a claim in judicial review to challenge the order in issue.

“Therefore, if the individual wishes to challenge the detention order in circumstances where there is a right of appeal, they are obliged to do so by way of appeal and are precluded from doing so by judicial review.”

The judges noted that in this case, the father had the “suitable alternative remedy” of either appealing the care order or applying to discharge it under the Children Act 1989.

Dismissing the appeal, Lord Sales and Lord Stephens said: “to sum up, as regards the claim of habeas corpus brought by the father:

1. he was not entitled to seek to challenge the care order using his application for habeas corpus as the vehicle for that and the application was rightly dismissed summarily;
2. he was not entitled to challenge the care order by way of judicial review, because he had a suitable alternative remedy available to him in the form of a right of appeal or an application to discharge; and
3. his claim for habeas corpus was therefore bound to fail. The Court of Appeal was right to dismiss it.

“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. And to exercise the right of appeal, the father would need to seek and obtain permission to appeal by showing that his contention that the care order had been made improperly had a real prospect of success on appeal or that there was some other compelling reason why he should be granted such permission. If he could not do that, there would be no sound justification why further judicial resources should be devoted to examining whether the care order had been validly made.”

Lord Sales and Lord Stephens finally added: “In the light of this discussion 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 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.”

Lord Reed, Lord Leggatt and Lady Simler agreed with the decision.

Lottie Winson