A Supreme Court justice would have allowed the Child and Family Agency’s appeal against a High Court order granting habeas corpus in a child care case, concluding that the parents had not proved a fundamental failure of justice in the District Court.
Justice Peter Charleton delivered the dissent on 23 February 2017. He agreed with the majority’s legal principles but disagreed with its conclusion on whether the procedural problems at the original hearing deprived the District Court of jurisdiction. The judgment states that the appeal should be allowed. This is Charleton J’s dissenting position, not the court’s overall outcome.
The case arose after the District Court made an interim care order on 29 October 2015, placing the children in the Agency’s care. The parents’ lawyers sought a week’s adjournment so the father could obtain representation and the mother’s solicitor, appointed that morning, could take instructions. The Agency consented, but the District Court refused. The High Court later found that the parents had not been given an opportunity to engage fully with the evidence and ordered the children’s release under Article 40.4.2 of the Constitution.
The High Court order was not implemented as an immediate return to the parents. Following an agreement, the Agency was given an opportunity to return to the District Court for another order. At the time of the appeal, the children remained in foster care, and the parents were not seeking their return until their circumstances improved. The original interim order had expired and been replaced, but Charleton J considered the appeal justified because similar procedural disputes could recur and the statutory framework remained relevant.
Charleton J said habeas corpus was available only in exceptional circumstances, such as a fundamental denial of justice, and should not operate as a parallel appeal. He also said section 23 of the Child Care Act 1991 empowered a court that found a care order invalid to avoid an unsafe or chaotic return by making a further care order or remitting the matter to the District Court.
In his view, the evidence showed a procedural error: the mother’s solicitor had insufficient time to consider social work reports, and the father lacked representation. But it did not prove that the District Court had abandoned its duty to treat the children’s welfare as paramount. He said the burden on the parents to establish that exceptional failure was not met. The judgment records no new order by the Supreme Court in this dissent; it sets out Charleton J’s view that the appeal should succeed.