A discussion about section 37 of the Children Act 1989 and the pending appeal on Re K (Children)  EWCA Civ 1169
The case is discussed over at Family Lore, here
and Family Lore’s focus is on how the parents nearly messed up their very valid argument by the manner in which they presented the case. That is a very good analysis and discussion, and I recommend checking it out.
I come at this from a slightly different tack, which is the novel and interesting point of law that Mr and Mrs B included in their grounds for appeal, namely that a series of ICOs were made, without an application for such being made by the Local Authority, the Court effectively making them of their own motion by using the powers under s37 and s38(1)(b) to make ICOs of the Court’s own motion.
The judgment granting permission to appeal can be found here
The bare facts are these. Mrs B is the mother of two children, who the Court named “Tok” and “Tun” (which are the most unusual pseudonyms for children I have seen in a judgment). Tok was 15, Tun 12 ½. The father of the child is Dr K, mum and dad are estranged. Mum remarried, and Mr B is the stepfather.
There have been extensive private law proceedings over about six years and at the time in question, the children had been living with Mr and Mrs B.
On 10th December 2010, the Court made a section 37 direction, inviting the Local Authority to prepare a report on the circumstances of the case and specifically to report as to whether it would be appropriate to initiate care proceedings (and if not, to say why not). Alongside that, the Court made an Interim Care Order.
This is the only situation in which a Court can make an Interim Care Order without a formal application and arises from
Section 38 (1) of the Children Act 1989
(a) in any proceedings on an application for a Care Order or Supervision Order, the proceedings are adjourned; or
(b) the Court gives a direction under section 37(1),
the Court may make an Interim Care Order or an Interim Supervision Order with respect to the child concerned.
The purpose of that power is to enable a Court faced with private law proceedings where it appears that the child is suffering or at risk of suffering significant harm if an ICO or ISO is not made, to make one, which would be for a period of 8 weeks, which coincidentally or by design, is the timescale for the Local Authority to supply their section 37 report.
Mr and Mrs B refused to work with the Local Authority, and as a result, five days after the making of the ICO, the children were removed from their care.
Now, remember, that in making the ICO, there was no formal application before the Court, and therefore the Local Authority had not laid out to the parents the threshold criteria (or the facts that led to concerns about significant harm) and nor had the Court held a hearing to determine whether the legal test for removal of the children under an ICO was made out. (It being settled law now that sanctioning separation at interim stage is more than just deciding that an Interim Care Order is the right order)
By 28th January 2011, the LA had determined that matters had cooled and that the children could be returned to Mr and Mrs B, and did not make any formal application for a Care or Supervision Order.
The Judge considered otherwise, and made another section 37 direction for the LA to report, making alongside it a further Interim Care Order, pursuant to section 38 (1) (b). He also said that alongside that ICO, he did not sanction the children being returned to Mr and Mrs B whilst it was in force.
Now, this will be the nub of the appeal decision for me. I am aware that there are two schools of thought on the powers of s38(1) (b). One (my own) is that it goes far enough to allow a Court to make an ICO or ISO whilst awaiting the Local Authority’s report and decision as to whether to issue proceedings, “to hold the ring” as it were. The other (and one that I have seen in various County Court case and a couple of High Court cases) is that faced with a Local Authority who don’t share the Judge’s view that a section 31 application for a Care Order should be made, the Court can simply make a second and subsequent directions for further reports and further ICOs until either matters resolve or the LA see sense and issue.
The LA, in this particular case, changed their view to reflect the Judge’s strong views, and subsequently made an application for an ICO. But the children remained out of their care for at least some period, on the basis of a second ICO having been made, without an application, using a second s38(1) (b) order, rather than the traditional s38(1) (a) ICO on application.
The precise wording of the Act, as set out earlier, says that the Court can make an ICO alongside a direction for a section 37 report, and does not say that this can only be once, or can only be done if the LA have not reported.
But the obvious risk here is that rather than the application for a Care Order being prosecuted by the Local Authority, opposed by the parents, and determined by the Court, the Court is actually driving the application that it is in the position of determining.
It seems to me that whilst the first ICO is justifiable (although I think it would be worth remembering that s38(2) is clear that the order can’t be made unless there are reasonable grounds to believe the threshold criteria is made out, and the Court ought to, if making an order, give a judgment as to why that is the case and why in the circumstances of the welfare checklist making an ICO is better for the child than making no order) making subsequent ones put the Court in a dual position of seeking an ICO whilst also being the arbiter of whether one should be made.
I also suspect that at the appeal hearing, the Court of Appeal may be troubled by the judicial indication that when making the second ICO (that was, remember, not sought by the Local Authority) the Judge informed the Local Authority that he did not sanction them returning the children to Mr and Mrs B during that order. That seems to me, to be a step too far. A Court might indicate that the risks before the Court were high and that the current circumstances suggested that managing the risks with the children with Mr and Mrs B would be very difficult to achieve, but the Court has fettered here the Local Authority power to do what their stated intention was, which was to rehabilitate the children to Mr and Mrs B.
This is the basis on which the Court of Appeal granted permission for the appeal to be heard in full, although the time for appealing the ICOs was clearly long gone (as usual, my own underlining):-
- Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:
a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is “really no doubt at all” that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B’s bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.
b) The judge’s stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B’s co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority’s sustained assertion that there were no grounds for a further interim care order, the judge’s decision to make two subsequent fresh s 37 directions, thereby maintaining the court’s jurisdiction to make interim care orders, must be open to question.
c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:
“…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S’s first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned.”
The judge then goes on to record that “all that has fallen away” following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge’s conclusion that the previous social work reports were favourable to Mr and Mrs B and were “comprehensive and thorough”, the court’s grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.
d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says “I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis….”
In the permission hearing, the Court of Appeal didn’t make comment as to the other two issues I have touched on here – that the making of the first ICO allowed the children to be removed without the Court ever having determined that the risks involved were proportionate to the children being removed from home at an interlocutory stage, and whether when making the second ICO the Judge went further than he was entitled to by telling the Local Authority that the Court did not sanction the children being returned by the LA to Mr and Mrs B during the course of that order.