Re AB (A Child) (Habeas Corpus)

The Court of Appeal dismissed the mother’s appeal against the refusal of a writ of habeas corpus. The court held that a child is a "person" for the purposes of the Children Act 1989 (notably s.105 and s.8 read in context) and that the Interpretation Act 1978 Schedule 1 reference to "person" as including bodies of persons does not exclude natural persons. Because the child-arrangements and prohibited-steps orders made by the Family Court in January and May 2022 were lawful and remain unchallenged by appropriate Family Court procedure, the child is not unlawfully detained and habeas corpus was a misconceived remedy. The application for permission to pursue judicial review was refused as out of time and because available Family Court remedies had not been exhausted.

Nature of the claim: The mother applied for a writ of habeas corpus seeking the return of her daughter AB from the father, on the basis that the Children Act 1989 did not apply because a child was not a "person" as defined and that AB was therefore being unlawfully detained.

Procedural history:

• The matter had earlier been the subject of Family Court orders (Wakefield) of 21 January 2022 and 27 May 2022 directing that AB live with the father and imposing a prohibited-steps order against the mother.
• The habeas corpus application was transferred to the Family Division of the High Court on 21 June 2023, dismissed on paper by Poole J on 27 June 2023, and dismissed after an oral hearing on 22 September 2023 (order sealed 16 October 2023). This appeal followed to the Court of Appeal.

Issues framed by the court:

• Whether a child is a "person" for the purposes of the Children Act 1989 in light of the Interpretation Act 1978.
• Whether AB was being unlawfully detained such that habeas corpus was an appropriate remedy.
• Whether the mother had standing to bring habeas corpus and whether there was any arguable bias or procedural unfairness.
• Whether permission should be granted to pursue judicial review.

Court’s reasoning and conclusions: The court concluded that the ordinary meaning of "person" in the Children Act 1989 includes human children and the Interpretation Act’s extension to bodies of persons is inclusive, not exclusive, so the expressio unius maxim did not displace the ordinary meaning. Precedents and statutory context supported reading "child" as a person for the Act. The lawfulness of the Family Court orders, and the existence of appropriate Family Court remedies (including appeal or an application to vary the child arrangements order), meant that habeas corpus was not the appropriate route and the child was not detained for habeas-corpus purposes. The application for permission to bring judicial review was refused as out of time and because domestic remedies had not been used.

Wider context: The court noted the limited role of habeas corpus in family disputes and reiterated that challenges to Family Court orders should be brought by the available Family Court or appellate routes.

Appeal dismissed. The Court of Appeal held that AB is a "person" under the Children Act 1989, the Family Court orders of January and May 2022 were lawful and remain in force, and the circumstances did not amount to unlawful detention warranting habeas corpus. Permission to pursue judicial review was refused as out of time and because domestic remedies had not been exhausted.

Appeal from the High Court of Justice, Family Division (Poole J), FD23F00044. The habeas corpus application was transferred to the Family Division on 21 June 2023 (Senior Courts Act 1981, Schedule 1, para.3(aa)); dismissed on paper by Poole J on 27 June 2023 (CPR 87.4(f)); and dismissed following an oral hearing on 22 September 2023 (order sealed 16 October 2023). The present judgment is [2024] EWCA Civ 105.