The Father v Worcestershire Council Council

A judge must approach an application with an open mind, allow a litigant a fair opportunity to present the case orally, and give intelligible reasons. A care order cannot ordinarily be challenged by habeas corpus merely by alleging that the statutory threshold was not met: that allegation challenges factual findings and must be pursued through the appeal and discharge procedures under the Children Act 1989 and the Family Procedure Rules. A child living with foster parents under a care order is not thereby detained. Where an appeal court finds the hearing unfair but has heard the necessary legal argument and the lower court’s ultimate conclusion was correct, it may set aside the order and exercise the lower court’s powers to dismiss the application.

On 9 June 2023, the Family Court at Worcester made a care order under section 31(1) of the Children Act 1989 after finding that the threshold in section 31(2) was satisfied. The children were living with foster parents.

The father later applied to the Family Division for habeas corpus, seeking their return to his care. On 15 April 2024, Russell J refused the application in the applications court. The father appealed, arguing that the care order had been made without jurisdiction because the statutory threshold had not been met. The central issues were the fairness of the High Court hearing and whether habeas corpus could be used to challenge the care order.

1. The Court of Appeal set aside Russell J’s order because the hearing was fundamentally unfair, but dismissed the father’s habeas corpus application itself. The father was entitled to appeal under section 15 of the Administration of Justice Act 1960 without permission under rule 52.3(1)(a)(ii) of the Civil Procedure Rules 1998.
2. The pressure on an applications court could not justify denying an effective hearing. A judge must allow a litigant, including a litigant in person, a fair opportunity to present the case orally, remain open-minded until the argument has been heard, and give adequate reasons intelligible to that litigant. The court applied the principles in Labrouche v Frey [2012] EWCA Civ 881 and Re S-W (Care Proceedings: Case Management Hearings) [2015] EWCA Civ 27.
3. The father’s argument that the threshold in section 31(2) of the Children Act 1989 had not been met was necessarily a challenge to the District Judge’s factual findings. The care order therefore remained effective unless set aside or discharged through the procedures under the Children Act and the Family Procedure Rules. An appeal asserted that the order was wrong; it did not amount to acceptance of the order.
4. Habeas corpus was unavailable. A child living with foster parents under a care order was not detained in the relevant sense. The court applied the explanation in S v Haringey LBC [2003] EWHC 2734 (Admin), recently endorsed in Re AB (a child) (Habeas Corpus) [2024] EWCA Civ 105.
5. Although Serafin v Malkiewicz [2020] UKSC 23 explained that an unfair trial ordinarily requires a complete retrial, that case concerned a factual trial. This appeal concerned a legal question, and the father had now presented his argument. As no different result was possible, the court used its power under rule 52.20(1) of the Civil Procedure Rules 1998 to dismiss the application rather than remit it. The ongoing discussions about increased contact were unaffected.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 694, the court set aside the High Court order for procedural unfairness but dismissed the habeas corpus application under rule 52.20(1) of the Civil Procedure Rules 1998.
• High Court of Justice, Family Division: On 15 April 2024, Russell J refused the father’s application for habeas corpus.
• Family Court at Worcester: On 9 June 2023, DJ Solomon made a care order under the Children Act 1989 after finding that the statutory threshold was crossed.