Birmingham City Council v X & Anor

A court may make a supervision order under Part 4 of the Children Act 1989 only on the application of a local authority or authorised person, subject to the statutory exceptions permitting a care order to be made on a supervision application, or vice versa, and permitting an interim order following a direction under section 37. A section 37 report or recommendation does not itself constitute the necessary application. Where no application has been made, the court lacks jurisdiction to make the supervision order, and the order and consequential findings must be set aside.

Birmingham City Council appealed against a supervision order made by Recorder Dawar in private law proceedings concerning two children. The order followed a direction for a report under section 37 of the Children Act 1989, but no application for a supervision order or care order had been issued, and no interim order had been made under section 38.

The appeal was brought approximately four months out of time because the sealed order was received after the appeal period and subsequent attempts to obtain clarification from the court were unsuccessful. The central issues were whether an extension of time and permission to appeal should be granted, whether the appeal lay to the High Court, and whether the judge had jurisdiction to make a final supervision order without an application.

1. Permission to appeal out of time was granted. Applying the principles in Denton v White, the delay was substantially explained by the late receipt and uncertainty surrounding the order, the local authority had made repeated attempts to resolve the position, and the appeal had very strong merits.

2. The appeal properly lay to the High Court because the proceedings before the Recorder were private law proceedings, notwithstanding that the order appealed against was a supervision order.

3. Section 31(1) of the Children Act 1989 provides that, on the application of a local authority or authorised person, the court may make a care or supervision order. The statutory language requires an application. A section 37 report recommending supervision does not itself amount to an application.

4. Section 31(5) creates an exception where an application for a care order permits the court to make a supervision order, or an application for a supervision order permits a care order. That exception did not apply because there was no care-order application. The separate route involving a direction under section 37 and an interim order under section 38 also did not apply because no interim order had been made.

5. Although it was not necessary to decide whether an application could theoretically be made orally, the court had before it no application in any form. The statutory condition was therefore unmet, the Recorder had no jurisdiction, and the supervision order was ultra vires.

6. Any threshold findings made in support of the order necessarily fell with it. The separate arguments under Articles 5 and 8 of the ECHR therefore required no determination. The supervision order was set aside and the proceedings were brought to an end without remission for a fresh hearing.

• High Court (Family Division): Recorder Dawar made a supervision order on 20 March 2024 in private law proceedings. The High Court set the order aside as made without jurisdiction: [2024] EWHC 3659 (Fam).