Q (Child: Interim Care Order: Jurisdiction), Re

An interim care or supervision order cannot endure beyond a child’s seventeenth birthday, or beyond marriage where the child is aged sixteen. Section 38 of the Children Act 1989 is not a freestanding source of jurisdiction and must be read consistently with the Act’s age thresholds and its recognition of the growing autonomy of older children. Proceedings under section 31 do not automatically become purposeless when public law orders cease to be available. The court must instead decide whether their continuation remains necessary, proportionate and welfare-driven. In suitable cases, findings may inform future local-authority decision-making or other orders, but discontinuance will often be appropriate.

Interim care orders were made in respect of four children. One child, Q, was approaching her seventeenth birthday. The court had to decide whether an interim care order made before that birthday could continue after it under section 38 of the Children Act 1989.

The local authority argued that section 38(4), as amended in 2014, permitted the order to continue until disposal of the proceedings. Q and the other parties argued that the order had to cease at seventeen because section 31(3) prohibited care and supervision orders after that age. The judgment also considered whether the underlying section 31 proceedings could continue without an available interim or final public law order.

1. Jurisdiction. An interim care or supervision order cannot endure beyond the child’s seventeenth birthday, or beyond the child’s marriage where the child is aged sixteen. The same limitation applies to an order made for a period during which the child reaches the relevant age.
2. Section 31(3) of the Children Act 1989 prevents a care or supervision order being made in respect of a child who has reached seventeen, or sixteen if married. Section 31(11) confirms that, unless otherwise provided, a care order includes an interim care order. Section 38(4), as amended by the Children and Families Act 2014, removed periodic renewal requirements. It did not substantially extend the court’s jurisdiction beyond the carefully calibrated age thresholds in the Act.
3. The interpretation contended for by the local authority would permit compulsory care to continue after the age at which a substantive public law order could be made, on the basis that only the interim threshold had been established. That would interfere with the child’s Article 8 rights, undermine the statutory scheme and conflict with the legislative purpose of the 2014 amendment. The observations of Williams J in Re A (Wardship: 17Year Old: Section 20 Accommodation) [2018] EWHC 1121 (Fam) were obiter and were not accepted.
4. An interim public law order is not a freestanding remedy. Its jurisdiction arises only on an adjournment of section 31 proceedings or following a direction under section 37. The purpose of an interim care order is to safeguard the child until the court can decide whether a care order should be made, as explained by Lord Nicholls in Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10.
5. The loss of jurisdiction to make interim and final public law orders does not necessarily require the section 31 proceedings themselves to end. The court must scrutinise whether continuation has a useful forensic or welfare purpose, whether it is proportionate, and whether it may inform future local-authority decisions or permit another appropriate order, such as a section 8 order in exceptional circumstances or an order under the inherent jurisdiction. In many cases withdrawal or discontinuance will be proportionate.
6. The interim care order concerning Q would cease on the day she reached seventeen. The issue of continuing the public law proceedings was adjourned for case management.