Dismissal of an application for a writ of habeas corpus made in connection with the removal of the applicant's children. The proper forum for litigating issues that arose whilst the care proceedings were on foot was the court where the care proceedings were being tried and not the Administrative Court.Application for a writ of habeas corpus made in connection with care proceedings under Part IV Children Act 1989. The applicant ('S') was the mother of four children who were removed by police in January 2003 and placed in foster care. The family proceedings court subsequently made emergency protection orders and interim care orders. S issued judicial review proceedings against the local authority ('H'), the guardian and the guardian's solicitor. In August 2003, Munby J refused S permission to apply for judicial review. By the present application, S alleged that: (i) the action of the police when they removed the children was unlawful; (ii) her children were being held by H unlawfully under the interim care orders; (iii) the emergency protection orders were procured unlawfully; and (iv) her children were being held by H against their will and had been abused whilst in its care.HELD: (1) The present case was an attempt to litigate an issue that arose in the context of pending or threatened care proceedings under Part IV of the 1989 Act in the Administrative Court. S was attempting to litigate much the same issues as those raised in the judicial review proceedings. (2) Two principles could be derived from the decisions in Re C (A Child) (Care Proceedings: Care Plan) (2002) 1 FLR 1119; Re L (Care Proceedings: Human Rights Claims) (2003) EWHC 850 (Admin) and Re M (Care Proceedings : Judicial Review) (2003) EWHC 850 (Admin): (i) the proper forum for litigating issues that arose whilst care proceedings were on foot would almost always be the court where the care proceedings were being tried; (ii) the family proceedings court was often just as well suited to decide such matters as the county court or the family division of the High Court. Those principles were equally applicable to applications for habeas corpus as they were to applications for judicial review or freestanding applications for relief under the Human Rights Act 1998. (3) Even assuming S's factual complaints were valid, her application was hopelessly misconceived. Any defects in the removal of the children or the process by which the emergency protection orders were obtained could not affect the validity of the children's placements or the lawfulness of their "detention". S had not articulated any basis of challenge either to the lawfulness of the various interim care orders or the lawfulness of the children's foster placements. The remedy sought, a writ of habeas corpus ad subjiciendum, was a remedy to protect against an unlawful detention or imprisonment. However, the children were not being detained. Even if there was otherwise some arguable merit in S's application, the proper forum for the dispute was within the care proceedings in the family division.Application dismissed.

[2003] EWHC (Admin)

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