K (Children), Re

A court may make more than one direction under section 37 of the Children Act 1989 during private law proceedings. It may renew or extend a direction where the local authority has failed to comply or its investigation has substantially failed to address the court’s concerns.

The power cannot be used to override the statutory allocation of responsibility. Once the authority has adequately investigated and gives considered reasons for declining care proceedings, the court cannot employ successive directions and interim care orders to pressure it into changing that decision. Any contrary judicial view must be explained fully and clearly.

In longstanding private law proceedings concerning two boys, the county court directed a local authority to investigate one child’s circumstances under section 37 of the Children Act 1989 and made an interim care order. The judge subsequently made two further section 37 directions and interim care orders despite the authority’s eventual conclusion that care or supervision proceedings were unwarranted.

The authority later commenced care proceedings after the mother and stepfather withdrew their co-operation. The child was placed with his maternal grandparents and they ultimately received a special guardianship order.

Following the grant of permission to appeal in [2012] EWCA Civ 1169, the mother and stepfather challenged the entire process. The central issues were the court’s power to make successive section 37 directions and associated interim care orders, and whether the proceedings were tainted by unfairness or judicial bias.

1. The appeal was dismissed unanimously. A court is not limited to one section 37 direction during private law proceedings. A child’s circumstances may change, and the statutory language contains no “one shot” restriction. A direction may also be extended or renewed where the authority has not complied with the original direction or its investigation has failed significantly to engage with the court’s concerns.

2. The power is subject to an important jurisdictional boundary. Under section 31(1) of the Children Act 1989, the local authority, rather than the court, determines whether to commence public law proceedings. A court cannot use repeated section 37 directions and interim care orders to compel an authority to initiate proceedings or to exercise parental responsibility in accordance with judicial preferences.

3. The first direction and interim care order were supported by ample expert and professional evidence. Although the judge should have explained the court’s concerns more clearly and should have made the section 37 direction before considering the section 38 order, those shortcomings caused no material unfairness. The January renewal was also lawful because the first report omitted material assessments, the authority accepted that an addendum was appropriate, and the evidential basis for interim protection remained.

4. By March, however, the authority had completed its investigation, produced a comprehensive assessment and maintained a considered view that care or supervision proceedings were unjustified. The further direction and interim care order crossed the jurisdictional boundary. The judge also failed to engage in a reasoned judgment with the authority’s contrary position and impermissibly left the father and guardian to identify the supposed deficiencies. A timely appeal against those orders would have succeeded.

5. That historical error did not invalidate the proceedings as a whole. The later detailed judgments and directions disclosed neither bias nor procedural unfairness. The placement with the maternal grandparents was supported by the professional and expert evidence and fell within the judge’s broad welfare discretion. It was not plainly wrong. The final special guardianship order therefore remained undisturbed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court held that the March 2011 direction and interim care order exceeded the county court’s jurisdiction, but that this historical error did not taint the proceedings as a whole or justify setting aside the final special guardianship order: [2012] EWCA Civ 1549.

2. Court of Appeal (permission): Ward LJ and McFarlane LJ granted permission to appeal and identified the matters requiring a full hearing: [2012] EWCA Civ 1169.

3. Exeter County Court: His Honour Judge Tyzack QC made successive section 37 directions and interim care orders, subsequently sanctioned the child’s placement with his maternal grandparents, and made a special guardianship order in their favour on 13 January 2012.