I always love when an issue comes up that in the course of the Children Act’s thirty-six year history just hasn’t happened before.
E (Section 37 Direction) [2025] EWCA Civ 470 (16 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/470.html
In this case, the Local Authority were involved in care proceedings in relation to a child E, who was less than a year old. The mother had been staying at her sister’s home (A) and A had children of her own. In the course of a hearing about E, allegations came to light about the state of A’s home.
Put down anything that you’re eating. I’ll wait.
Understandably, the Guardian was very concerned about A’s three children, aged 4, 2 and 12 weeks. The Court asked counsel for the LA to go out and take instructions – the social work team for A were a different team to the one looking after A’s children.
After a break, counsel informed the judge that her solicitors had confirmed that there was a record on the files of a health visitor seeing a gun at the property, that the police had undertaken a joint visit with social workers and had not seen a gun. The following exchange then took placed between local authority counsel and the judge:
“Counsel: So the local authority say that they are responding to the concerns in a proportionate way. There was a strategy meeting last Thursday and there was a multi-agency discussion. They are going back to the police to check if there was a proper sweep of the home, but, on the joint visit, there was no evidence of firearms. They would accept the section 37. If it is directed, of course, they have to, but they are not issuing at this stage because they are working with the family, with A, to try and ensure her children’s safety and there is a real concern that, if this report is directed within these proceedings — issues about confidentiality because M is not aware of the extent of or I think may not be aware at all of domestic abuse in her sister’s relationship, and certainly that is a concern that I would advocate on behalf of the local authority, that these are children really that are outside the ambit of these proceedings. I appreciate that their welfare has come to the fore of what we know about M and —-
Judge: The local authority know what section 37 says, don’t they?
Counsel: Yes.
Judge: They understand the basic principle of section 37.
Counsel: They are looking to see whether a supervision or care order should be made in relation to these children, but they say that effectively, in this pre-proceedings stage in relation to A, they are not at the threshold to issue proceedings. They are working with her, with the safety plan, with the friend, multi-agencies involved. The police have been involved and are going to be asked to be involved again to double-check the status of the firearm that was seen by the health visitor, and they are looking to encourage and support A to make decisions whereby this violent relationship that she is beginning to disclose is ended. But we are in the hands of the court, so I accept that the court has the powers obviously to direct the report and to make the order that you have indicated you may well do.”
The guardian’s solicitor responded that the guardian was extremely concerned about A’s three children and had instructed her to ask that an interim supervision order be made.
The judge then delivered a short judgment, which has also been transcribed. He recorded that, at the earlier hearing on 27 January, he had indicated to the local authority that he was anxious about the welfare of the three children, and had made it very clear that he would be enquiring about them because it seemed to him that “there was scope for public law proceedings to be considered”. He summarised the latest concerns which had been reported to him that morning. He recorded the local authority’s position that they could not stand in the way of a section 37 direction but that they opposed an interim supervision order because they were still working with the family.
The judge then said that “the law in respect of this sort of issue is straightforward and settled”. He recited section 37(1) and added: “that is settled”. He summarised the provisions of section 38(1)(b) and observed:
“The information that I have received from the guardian clearly meets that threshold. A firearm, faeces, fleabites and accidental injury against the background of a mother who has engaged in a relationship that might be domestically abusive is, in my judgment, interim threshold open-and-shut.”
The judgment then concluded as follows:
“8. I have got to consider whether I should make an interim care order or an interim supervision order. This case, in my view, falls squarely within the interim supervision order bracket on the strict proviso that, within the next 24 hours, an urgent search of this property is undertaken to make sure that there is no firearm present. If a firearm were found to be present and not removed, that would be threshold, in my judgment, for an interim care order to be made to make sure that the local authority took on responsibility for making this property safe, but I am optimistic that the professionals will do their job and that will not be necessary.
- I am going to give the local authority eight weeks to complete their section 37 report. The interim supervision order is made for the same period of time. The section 37 report is not to be disclosed to the mother in the main proceedings to maintain confidentiality. The guardian, of course, is automatically appointed in respect of the three children for the duration of my order, if my understanding of the rules concerned is correct and she can produce a position statement in advance of the hearing in eight weeks’ time, which I will now try and set.
- I should say that nothing that I am saying in this short ex tempore judgment should be perceived as being critical of the local authority. This social work team are very well respected in this court, but I am concerned about what I have heard and, at the end of the day, decision-making is a matter for me when it comes to Children Act matters and I am just doing what I think is correct to keep these children appropriately safe.”
Given that this case came before the Court of Appeal and how I opened this piece, do we think that the Judge was right in his summary that the law in relation to this is “straightforward and settled”?
The appeal turned on this legal question :-
In the wording of s37(1) – when the Act says “Any child” does it literally mean “any child” or does it mean “any child about whom there is a live application before the Court?”
“Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.”
And can a Guardian representing Child A properly invite the Court to make a s37 order and ISOs about three children who are not part of the proceedings?
And subsequently, was the Court wrong to make an interim supervision order under s37 when the parents of those three children had no idea whatsoever that this was even under consideration?
The Court of Appeal were understanding that the Court was very worried about these three children, but on those three questions they basically say – a s37 ‘any child’ has to mean ‘any child about whom the Court is being asked to make decisions about their welfare’ , that the Guardian did not have locus to make such an application, and that it was procedurally unfair to make ISOs when the parents were completely unaware.
Discussion and conclusion
I fully share the judge’s concerns about these three young children. The reports in the social worker’s initial statement about conditions at A’s house were very alarming and it was entirely understandable that he asked to be updated at the hearing on 10 February. As I observed during the hearing, Ms Goss and guardian also acted out of concern about what had been divulged about the circumstances of the three children. As noted above, the guardian’s duties under FPR rule 16.20 and PD16A paragraph 6.6 extend to advising the court on such matters as the court may direct and about which the guardian considers that the court should be informed. To that extent, the guardian here was acting in accordance with that duty.
But I conclude that in taking steps he thought necessary to protect the three children, the judge misunderstood the scope of s.37. Furthermore, in his anxiety about the three children, and placing them under interim supervision orders, he overlooked the need to ensure that the procedure he adopted was fair.
At first glance the interpretation of section 37 proposed by the guardian and adopted by the judge is tenable. But on closer scrutiny, I conclude that it is wrong, for the following reasons.
First, there is the language in the subsection. If one focuses only on the words “any child”, one might conclude that the power extends to any child who comes to the court’s attention during the proceedings. But it is necessary to look at the whole phrase – “any family proceedings in which a question arises with respect to the welfare of any child”. In my view, that plainly means “proceedings in which a question arises for determination about the welfare of a child”. It does not mean “proceedings in which the court becomes aware of a concern about the welfare of a child”.
(Italics mine for emphasis)
Whilst it is significant that since the implementation of the 1989 Act there has been no reported case in which a court has made an order under section 37 in respect of a child who was not the subject of the proceedings, that is not by itself decisive. Conceivably, there may be unreported cases in which this has happened. The fact that the judge in this case thought that the power extended to other children – and did not feel it necessary to address the possibility that it did not – suggests that it is at least possible that other judges and lawyers may have adopted the same interpretation in circumstances which did not lead to any reported judgment. But that is not how the provision has generally been understood.
The passages cited above from the judgments of Wall J in Re CE (Section 37 Direction)¸ Wilson LJ in Lambeth LBC v TK and KK, and McFarlane LJ in Re K (Children) all indicate that the purpose of a section 37 direction is to enable the court to obtain a report about the child who is the subject of the proceedings. It is, as Wall J said in Re CE, “a means of assisting the court in its assessment of the options available for dealing with the child”.
The paradigm situation in which a section 37 report is ordered is in the course of proceedings about a child under Part II of the Act. In most proceedings, where the court concludes it needs information about the welfare of the subject child in order to decide whether to make orders under section 8(1), it orders a report under section 7. But when a judge becomes concerned that the child’s circumstances are such that it may be appropriate for the child to be made subject to a public law order under section 31, he has the additional power to make the direction under section 37. Section 37 thereby provides, in the words of McFarlane LJ in Re K (Children), “a jurisdictional bridge between private law proceedings under Part 2 of the Act, in which a local authority normally plays no part, and the public law provisions in Part 4”. Where after completing the section 37 assessment the local authority decides to start proceedings under Part IV, the bridge will have been “traversed” and the range of options available for dealing with the child will be expanded to include care or supervision orders. Where the local authority has decided not to start proceedings under section 31, those orders will not be available. But the report may still be of assistance to the judge considering the options for dealing with the child. It is for that reason that the information in the report must include not only the local authority’s reasons for so deciding but also details of any service or assistance which they have provided, or intend to provide, for the child and his family and any other action which they have taken, or propose to take, with respect to the child: section 37(3).
And then, on the later two points:-
Further or alternatively, whether or not the court was entitled to make the section 37 order in respect of the three children, and place them under a supervision order, I accept the local authority’s arguments under ground 2 that the procedure adopted in this case was unfair.
No notice was given to A or her partner that the court was considering making a section 37 direction and a consequential order under section 38(1). The cases in which an application in children’s proceedings can be made without notice are defined in FPR rule 12.16. They do not include applications for orders under Part IV. In Re L, supra, McFarlane LJ rejected an argument that a judge had acted outside her powers by making a section 37 order coupled with an interim care order without notice to the child’s mother. It is unclear to me whether the Court in that case was referred to the provisions of rule 12.16. But assuming that the decision in Re L is binding authority for the proposition that an interim order under section 38 can be made without notice, such a course should only be followed in exceptional circumstances.
So much is clear from a comparison with the procedure for making an EPO. The court has the power to make an EPO without notice. But that power must be exercised sparingly. As Munby J said in X County Council v B at paragraph 57(vii)
“Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.”
The same approach is applicable when the court is considering whether to make an interim order under section 38 consequential to a direction under section 37. For the reasons set out above, I have concluded that there is no power to make such an order in respect of a child who was not the subject of the proceedings. But if there were such a power, save perhaps in wholly exceptional cases, the parents of that child would have to be given notice. In the present case, no circumstances have been identified to justify making the interim supervision order without notice to the parents. As a result, A or B had no opportunity to respond to the allegations raised by the guardian or make representations on the proposed orders.
Secondly, having decided to make an order without notice to A and B, the judge erred in failing to list the matter for an early hearing once notice had been given. In any circumstances in which a court feels it necessary to make an order without notice, there are strict requirements about making the order for a limited time and allowing the party against whom the order is made to make representations and seek to have the order varied or set aside. Contrary to the usual practice when an order is made without notice, the court here did not make the order for a limited period or fix the case for a further hearing when A and B could be present. The order would continue until the hearing 8 weeks later unless A and B applied under section 39 for it to be discharged.
Furthermore, as set out above, section 38(10) expressly required the judge, when determining the period for which an interim order under the section is to be in force, to consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full. Here A and B had no opportunity to argue the case at all. It seems from the transcript that there was no reference to this requirement at the hearing either by the advocates or by the judge.
Again, a comparison with the EPO procedure is instructive. As Munby J said in X County Council v B at paragraph 57(v);
“Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.”
Having concluded that the circumstances warranted making an interim supervision order without notice to A and B, it was incumbent on the judge to direct a further hearing be listed promptly to give them an opportunity to make representations.
Thirdly, the judge made the orders largely on the basis of what he was told in court. As set out above, the general rule in FPR rule 22.2(1) that any fact which needs to be proved by the evidence of witnesses is to be proved by their oral or written evidence does not apply to proceedings for an interim care or supervision order, or where otherwise provided by an enactment, rule, practice direction or court order: rule 22.2(2). In this case, a statement had been filed before the first hearing on 27 January in which evidence was given about conditions at A’s property. But there was no proper evidence about the matters raised orally by the guardian at the hearing on 10 February. The local authority counsel responded to those matters by telling the judge what her instructing solicitor had read from the computerised social services records. That was an insufficient evidential basis on which to make an interim order under section 38(1).
Furthermore, the judgment contained no consideration of the legal principles to be applied when considering whether to make an interim care or supervision order. A court considering whether to make such an order must consider the factors in the welfare checklist in section 1(3) of the Act, and evaluate the proportionality of the proposed interference with Article 8 rights, having regard to the principle that the court must always adopt the least interventionist course consistent with the child’s welfare. In this case, there was no analysis of these matters in the judgment.
Finally, the appointment of the guardian to represent the three children was ultra vires. It was not correct to say that the guardian was automatically appointed in respect of these children for the duration of the supervision order. The power to appoint a guardian is confined to (a) specified proceedings and (b) under FPR rule 16.4. Under s.41(6)(b), proceedings in which a court has given a direction under section 37(1) are only specified proceedings where the court “has made, or is considering whether to make, an interim care order”. Once the judge decided to make an interim supervision order, the proceedings were not “specified”. The purported appointment of the guardian was plainly not made under rule 16.4 because (1) the judge clearly thought he was making it following the section 37 direction and the interim supervision order, (2) the children had not been joined as parties to the proceedings, and (3) in my view could not conceivably have been joined as parties to these proceedings which concerned E.
These deficiencies in the procedure adopted in this case are not mitigated by the fact that the court only made an interim supervision order and not an interim care order. It is true that a supervision order is less interventionist than an interim care order, but that does not mean, as Mr Calway asserted, that the court was not making orders which led to any direct interference in parental responsibility. The making of any order under Part IV of the 1989 Act is an interference with parental responsibility. Furthermore, if the broader interpretation of section 37 contended for on behalf of the guardian were correct, it would have been open to the judge to make interim care orders or, if making interim supervision orders, to have imposed a direction under section 38(6) or under Schedule 3.
It is, of course, right that effective child protection requires untrammelled cooperation between all agencies. For that reason, where a judge in the course of proceedings becomes aware of circumstances which suggest that a child may be at risk of significant harm, he or she will consider taking appropriate steps to notify the relevant local authority. The judge here was rightly concerned about the three other children in the house. He was understandably anxious to know what steps the local authority was taking about them. Having considered representations from the parties to the proceedings, he would have been justified in allowing the disclosure of information from these proceedings to the social work team involved with the three children. But he was not, in my view, entitled in these proceedings to direct the local authority to carry out an investigation of the circumstances of the three children or to make them subject to interim orders under section 38.
It was for those reasons that I concluded that the appeal should be allowed and the section 37 direction and the interim supervision orders under section 38(1)(b) set aside.
suesspiciousminds 