The Court of Appeal (CoA) heard a rare case relating to Section 37 of the Children Act 1989.
Background:
The case arose from care proceedings initiated by the local authority (LA) concerning a baby girl, E, who was born on December 7, 2024, to her mother, M, aged 21. E’s father does not have parental responsibility and has not been involved in the proceedings.
The LA had pre-birth concerns about M's lifestyle, given that she was prone to excessive drinking and hedonistic behaviour. Arrangements were made for M and E to move to a mother and baby foster placement. In January 2025, while waiting for the placement to become available, M arranged for E to stay at the home of M's sister, E's aunt A, and her partner B, and their three young children. Social workers visited the property on several occasions and were concerned about the untidy, unhygienic, and unsafe conditions.
On the day of the planned foster placement, M refused to go and, on 27 January 2025, the LA began care proceedings for E. At the case management hearing on 10 February 2025, the Judge raised concerns about the conditions at A's property.
E’s guardian solicitor then raised further concerns about A and her three children, seeking a Section 37 investigation. These concerns included allegations of worsening conditions in A's house, A accidentally hitting one of her children with a fishing rod, a health visitor's report of faeces in the kitchen sink and fleabites on the children, concerns about domestic violence in A's relationship, and an allegation of a gun being present in the house.
After the hearing, M and E moved to the planned placement, although M moved out after a few days, leaving E with the foster carer.
Despite the LA's position, the Judge concluded that the threshold for a Section 37 investigation and interim public law orders had been met. He directed the LA to undertake a Section 37 investigation into the circumstances of A's three children and made an interim supervision order for them for eight weeks. On 14 February 2025, the LA filed a notice of appeal against the direction for the Section 37 report and the interim supervision order, as A’s children were not the subject of the original care proceedings for baby E.
Decision:
The CoA allowed the appeal and the interim supervision orders were set aside. The Court noted that the Judge’s interpretation allowing a Section 37 direction for children not involved in the initial proceeding was incorrect. The wording of Section 37 is restricted to children who are the subject of ongoing proceedings. There are also no precedent as the Judge noted “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.” As such, it would also go against the purpose of the section.
Equally, the Court found that the interim supervision order could not be made without notice to A and B, as no emergency circumstances justified such an action.
Implications:
As Lord Justice Baker noted, “More than a third of a century has passed since the implementation of the Children Act 1989. In the intervening years, its provisions have been trawled over in numerous reported decisions. Yet occasionally a case raises a point which has not arisen before. This is just such a case.” This case clarifies the scope and interpretation of Sections 37 and 38 of the Children Act 1989, as it limits the jurisdiction of the courts, which do not have an automatic power to direct investigations and impose interim public law orders on children who are not subject to a specific family proceedings. When significant welfare concerns arise concerning other children, separate proceedings will have to be initiated regarding those children. Moreover, the fact that A and B were not given notice was considered procedurally unfair.
