AB (a child) (Habeas Corpus), Re

An inclusive statutory definition extends a word’s ordinary meaning. It does not ordinarily exclude matters already within that meaning. Accordingly, the inclusion of corporate and unincorporated bodies within “person” does not exclude human beings. A child is a person under the Children Act 1989.

Habeas corpus protects against detention. A child living in an ordinary domestic setting with a parent under a lawful child arrangements order is not detained. Any challenge to that order must be pursued through the remedies available in the Family Court or by appeal.

The mother appealed against Poole J’s dismissal of her application for habeas corpus seeking the return of her daughter. The child lived with her father under child arrangements and prohibited steps orders made by the Family Court in 2022.

The mother contended that the child was not a “person” within the Children Act 1989. She argued that the statutory orders were consequently unlawful and that the father was detaining the child. She also alleged judicial bias and sought permission to pursue judicial review.

The central issues were whether a human child falls within the statutory meaning of “person”, whether the child was detained for the purposes of habeas corpus, and whether the bias and judicial review grounds were sustainable.

1. Appeal dismissed unanimously; permission to pursue judicial review refused. King LJ gave the principal judgment. Falk LJ and Lewison LJ agreed, with Lewison LJ giving additional reasons on statutory interpretation.

2. The definition of “person” in Schedule 1 to the Interpretation Act 1978 is inclusive. Its reference to corporate and unincorporated bodies extends the ordinary meaning of “person”; it does not exclude natural persons. The ordinary meaning includes a human child. The language, structure and evident purpose of the Children Act 1989 confirm that it concerns human beings under 18. The statutory definition of “child” therefore applied to AB.

3. The expressio unius canon is an interpretative tool rather than an absolute rule. It had no application where the specified bodies were included to bring within the definition entities that might fall outside the word’s ordinary meaning. Lewison LJ added that, even if the mother’s approach otherwise had traction, the contrary intention evident in the Children Act 1989 would prevent it from applying.

4. The mother was entitled to initiate habeas corpus proceedings as a concerned third party. The prohibition on exercising parental responsibility did not prevent her from applying for the writ. Nevertheless, habeas corpus requires detention. A child living with a parent in an ordinary domestic setting under a lawful child arrangements order is not detained. The existing Family Court orders therefore made the habeas corpus application misconceived. The proper course was to seek reconsideration, appeal, or apply in the Family Court to vary the child arrangements order.

5. The fact that Poole J was a leadership judge whose responsibilities included the area served by the Wakefield Family Court could not, without more, establish a real possibility of bias in the eyes of a fair-minded and informed observer.

6. Permission to seek judicial review was refused. The proposed claim was neither prompt nor brought within three months, no extension had been sought, and the mother had not exhausted the remedies available in the Family Court. Although procedural allowances may be appropriate for a litigant in person, the applicable rules are not modified or disapplied for that reason.

1. Court of Appeal (Civil Division): Dismissed the mother’s appeal from the refusal of habeas corpus and refused permission to commence judicial review proceedings: [2024] EWCA Civ 105.
2. High Court, Family Division: Poole J dismissed the application for habeas corpus on paper on 27 June 2023 and again after an oral hearing on 22 September 2023. The order was sealed on 16 October 2023. No neutral citation is stated.
3. Family Court at Wakefield: Made child arrangements and prohibited steps orders in January and May 2022 under which the child lived with her father. Those orders had not been appealed or reconsidered.