Thursday, 11 March 2010

Baroness Deech and habeas corpus

Over on the Badman Review Action Group forum and elsewhere, a number of people are running round like headless chickens as a result of a passing remark by Baroness Deech during the Second Reading of the Children, Schools and Families Bill on Monday. She said;

"In Britain, we pride ourselves on the law of habeas corpus. Habeas corpus must extend to our children as well."

Two things strike one about this. Firstly, Baroness Deech is one of the most well known legal minds in the country. When she talks about habeas corpus, we'd best listen carefully and try and work out what she is hinting at. The second point is that most of those expressing opinions about this subject on the various lists display a lamentable ignorance on the topic. The problem is that in this country we associate habeas corpus with prisoners being held illegally and so many parents jumped to the conclusion that she was comparing their little darlings with unfortunate individuals being held captive in dungeons and waiting for the provisions of Magna Charta to free them. What idiots! Here is a typical comment from the Home Education Forums, admittedly not a place where one really expects to see rational opinions;

"Baroness Deech proudly furthered her claims of compassion toward the poor home educated children she is so very worried about, by comparing their right to be seen to the law of 'Habeus Corpus'..."Habeas corpus must extend to our children as well."In short, this means that she views home educated children as 'prisoner's who deserve the right to be to "produce"(d) in order to ascertain their well being & to have the validity of their detention determined by those in authority."

To see the real relevance of habeas corpus in the context of home education, it is necessary to turn to the United States. Although we are pretty sparing in the use of this principle, the Americans are far keener on it. And it is there, in America, that habeas corpus has for well over a century been applied to home education. After the American Civil War, the fourteenth amendment to the constitution was passed in 1868. To this was added the Bill of Rights and Writ of Habeas Corpus, stating that;

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Although this was primarily aimed at the institution of slavery, a subsequent court case ruled that ;

"Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children,"

It is upon the fact that habeas corpus in this context gives freedom to a citizen to decide how to bring up his children that it becomes involved in home education. In fact the Fourteenth Amendment and habeas corpus have been cited many times when people have fought in America for the right to educate their own children free from government control. Anybody interested in this should look into the Parental Liberty Doctrine and see its connection with habeas corpus. In the way that Baroness Deech was using it, she was probably also referring to the sort of child custody cases which regularly crop up in the States and where habeas corpus is used by one parent against another. It has also been used, and this is of particular interest, by children against their parents, where the child feels that the parents way of bringing them up is unreasonable!

Habeas corpus is very relevant to home education. Where it has been used in the USA, it has usually been used by parents against the state trying to dictate how they raise their children. In other words, home educators could and have used it. It could also be used by a child who did not want to be kept at home and wished to assert her right to attend school. It has absolutely nothing to do with prisoners in the way that Baroness Deech was speaking of it.


  1. It could also be used by a child who did not want to be kept at home and wished to assert her right to attend school.

    It could also be used by a child who was forced to go to a state school but wanted to be home educated or have a private education?

    We must listen to the children Simon?

  2. That was my first thought too, but after a quick read, if the confinement of the person is in accord with an Act of Parliament the petition for habeas corpus would fail.

    Mind you, is there a law that states that a child is breaking the law if they truant? Or does the law just state that a parent must ensure they attend if they are registered? How are they claim they are ensuring a child has habeas corpus rights if the parent is able, in fact required, to imprison them in school against their will without a law specifying that the child must be in imprisoned in school?

  3. At risk of bringing up the Khyra Ishaq case again, here was a child who was confined to one room in her house and kept there until she died. It is true that social services have powers to act in a case like this, but habeas corpus would also apply. I can imagine a case where a child was kept locked in a house and although not ill treated was still in effect a prisoner. Social services might be helpless in such a case, but habeas corpus would provide another remedy. I don't know if this is what Baroness Deech had in mind.

  4. So it is OK to confine a child in a school against their will, but not their home?

  5. Children are not confined to school. they spend a few hours there and then come home again. In the case of Khyra Ishaq, she was literaly confined to her home. A home could, in effect, become a prison. This could not happen with an ordinary day school.

  6. children are not confined to school. they spend a few hours there and then come home again. In the case of Khyra Ishaq, she was literaly confined to her home. A home could, in effect, become a prison. This could not happen with an ordinary day school.

    So its ok to be confined in a building against your will for a number of hours then?

    Khyra Ishaq did go out side of the house into garden and people saw her The father reported his concerns to social services who did not act to help her!The school also made repeated attempts to help her while she was at school but failed!

    If a child said to you i dont want to be at school i want to be home educated what would you say? you cant?

    A home could, in effect, become a prison.

    So you search every one house just in case a child is a prisoner in home? that s crazy how can you live and think like that Simon? You must have trust of people.Did something happen to you when you where young? where you abused?

    In the area i live some one some where in a house has child porn on computer do we search every house? of course not we target in a very careful way so that we are sure we will catch them,
    Your daughter do you trust her if she says im going out with friends or would you want to keep checking on her? you must have trust Simon.I fear it is to late for you?

  7. Those interested in the use of habeas corpus to rescue children from an unfortunate home life might care to find out about the case of Mary Ellen Wison in 1874. I am not suggesting that most home educated children are treated anything like this, but the principle is the same; that if the child's home life is unacceptable, then a writ of habeas corpus can rescue her.

  8. If a child said to you i dont want to be at school i want to be home educated what would you say? you cant? You not answered this question Simon Why??

  9. Baroness Deech might be one the most well-known legal minds in the country but her views are not universally popular, and to me, she appears to be swayed somewhat by her personal opinions. I was hoping for something a bit more incisive from a 'legal mind'.

  10. Drat and double drat Mutley- it is ironically on Simon's blog that I find discourse I want to participate in. What an end to my birthday ;>)
    It was I who brought up Baroness Deech's use of the term Habeas Corpus although I did not think for a second that she was using applying Habeas Corpus to EHE children hidden beneath the floorboards.
    I have lived in the USA and knew that it was a term in use when one parent applies for a Habeas Corpus Writ against the other parent for visitation and custody (or as they call it here in the UK, contact and residence).
    Habeas Corpus is also used by parents AGAINST the state: a writ can be issued against State interference in family life.

    I found one HE reference but it is American-


    So I have yet to see an instance where the State has used Habeas Corpus against parents - either in the USA or in the UK- unless this always the legal basis for care proceedings. Can anyone confirm this is the case? not being versed in legal matters at this depth I am out of my depth.
    I can see that this principle may stand when one parent in the UK petitions the court to make a judgement ( serves a Habeas Corpus Writ?)regarding contact or residence. In this instance the court may appoint a guardian ad litem to act for the child the state itself would not be issuing the writ it would be the petitioning parent against the other parent.
    I would like to know if there is a legal precedent for a Habeas Corpus Writ to be issued for educational issues?
    Is this already the basis under which an LA can issue an SAO for example?
    I have contacted a trusted family lawyer who may shed some light on this use of language but my feeling is that Baroness Deech does not mince nor mix words and she is not out of her depth.
    If this has not been a concept applied to education (specifically Home Education-i.e. State against parents) then I smell a cunning plan on the horizon..or maybe I just smell a rat?
    I do not think she was meaning a child that was kept isolated at home but not mistreated- the social exclusion itself would be considered a welfare concern and Social Services have powers to act.
    I fear that she meant that the State would intervene for a child whom the State considered was not receiving a suitable education and that the State would make the application for the child with the contention that the current Education Act's definition of 'suitable ' efficient and full time' is inadequate and not in line with the ECHR articles she mentioned -this would have to be taken to the European Court.

    Or is she calling for change in the Education Act itself at the UK level ?

  11. Tania, you say;

    "So I have yet to see an instance where the State has used Habeas Corpus against parents - either in the USA or in the UK-"

    You might care to look at the case of Mary Ann Wilson in 1874, which I mentioned above. This child was living with adoptive parents and being mistreated. A writ if habeas corpus was obtained against her guardians and she was removed from them. I'm pretty sure this process has happened more recently, but will need to research it. You are quite right, habeas corpus is routinely used in child custody cases in the American courts. A belated happy birthday and I am sorry that it should end with your having to post on my Blog! I hope the rest of the day made up for it.

  12. Simon I think that since that one case ,because separate child protection laws have come into force that Habeas Corpus is now no longer needed -but possibly it is the legal basis for all child protection proceedings both here and in the USA. This is exactly what I am trying to work out.
    If this is the case then Baroness Deech knows that under current law of course if there are reasons to believe there are child protection issues then there are powers.
    Maybe all she was trying to point out is that if a family is home educating and does not accept visits and also happens to be abusive and kept the child under lock and key , then no-one would know . Therefore she is using the term Habeas Corpus to imply that in order to find out whether a child was in such circumstances there needs to be a separate law (as provided for in schedule one)which checks ALL home educating families , who would all have to be required to register as home educating -just in case there is one child in this situation.
    Seeing as this idea has been argued out many times in recent months I do not feel it necessary nor beneficial to start it up as a topic again .
    However seeing as she also suggests that HE children should be seen as much as every 3 months is she actually implying that this is to be done to check and double check and triple check every year that there are no safeguarding concerns or is she conflating education and welfare?
    Was she
    A) using the term Habeas Corpus to mean that the State should have more powers to rule out safeguarding issues ?
    B) Was she using the term to imply that these checks need to be done for educational issues and that should a families educational provision be found lacking then Habeas Corpus should be used to claim the child was being denied the right to a suitable education.
    If she meant the latter option , B) then I am yet to see a single case law precedent. However I do wonder whether the successful issuance of a school attendance order has Habeas Corpus as its basis.

  13. Tania, habeas corpus has been used in this country when the state decides that it must protect the interests of children. In 1960, for example, a local authority applied for a writ of habeas corpus with regard to a foster child who was felt to be living in unsuitable conditions. I have no more idea than you just what Baroness Deech has in mind, but like you I doubt that she mentioned habeas corpus without thinking carefully beforehand. This was after all a speech in the Lords, not a casual conversation at a cocktail party!

  14. Can you point me to this 1960 writ?
    Just as confused as to why it is hardly ever used -why in this one case?
    Is it because in this case as a foster child the child was technically still a ward of the State so the State was the 'parent' serving the writ to the 'other foster parent'.

    That you can only find this one example (so far , and yes I am still investigating) does point to this being an extraordinary measure and not a principle which is applied in care proceedings nor SAO's.

  15. I have not been looking that hard Tania, I cam across this by chance;

  16. "Children are not confined to school. they spend a few hours there and then come home again."

    Habeas corpus is most often used in relation to children by parents disputing custody and visitation rights which suggests that the 'confinement' does not need to be 24/7 and prison like. If habeas corpus can apply to the normal amount of confinement within a family home it could equally apply to the six or so hours confinement at school, especially when you consider that the confinement at school is often involuntary.

    Is confinement of a child in school lawful? In other words, is there any law that gives schools the power to hold a child against their will as there are laws to allow prisons to hold prisoners against their will?

  17. Schools are acting in loco parentis. Parents transfer some of their parental authority to the school when they enroll the kid there. So just as it would be a parent's right to prevent a child leaving the house, so to is it the schools right to keep the child on their premises.

  18. So how can habeas corpus be applied to families if parents have the right to prevent children leaving the house? Is Baroness Deech effectively suggesting that this right should end or pass to the government?

  19. I honestly don't know what Baroness Deech had in mind when she made this comment! Your guess is really as good as mine, all I have been doing is speculating; I am probably way off the mark.

  20. Simon-any chance you with your journalistic connections can get hold of that entire article from the Cambridge Law Journal. Was it a lucky chance you found that or do you have access to a better search engine that I?

    I still contend that the State via the LA already were acting in loco parentis and were challenging their own previous decision to place that child with a particular person.

  21. The archives for the Cambridge Law Journal are online. Problem is, you have to pay for access. You can reach the site here;

    I think that if you really want to track down the rest of the article, the solution would be to log on from some organisation which already has a subscription to this. Some libraries, for example, or better still a college or university.

  22. I do wish there was more of a 'legal' team set up in the UK for Home Education. EO have Ian Dowty and maybe some other legal people but seeing as this issue relates to Family Law I am not sure that Ian could research it so easily. A family lawyer may be able to shed more light- hey I know a family barrister-maybe I shall ask her.