Lauren Suding summarises a judgment for Family Law Week. A mother lost her appeal against the decision to refuse her habeas corpus application related to her child, whom she knew was living with the child’s father.
One of the mother’s submissions, which the court determined was “wholly misconceived”, was that her child was not a “person” under the Children Act 1989. The mother argued that if the Interpretation Act 1978 had meant for a child (or any individual human being) to be a person (rather than just bodies of persons), it would have expressly stated that. Therefore she claimed that the Family Court had no jurisdiction.
The Court of Appeal judgment briefly (but interestingly) reviewed the law of habeas corpus, which is a remedy protecting the citizen or subject against an unlawful detention or imprisonment, as well as Bennion, Bailey and Norbury on Statutory Interpretation.
The court reviewed the recent judgment in Savage v Savage [2024] EWCA Civ 49 about inclusive and exclusive wording in statutory interpretation. It also noted “In Re B-M (Care Orders) [2009] EWCA Civ 205 at para.[39], Wall LJ remarked that the writ of habeas corpus is now ‘obsolete in family proceedings’”.
The Court of Appeal acknowledged that the mother had standing to bring the appeal. But in finding that AB is and was a person and that AB’s father was not “detaining” the child, it dismissed the mother’s appeal.