E (Section 37 Direction, The Children Act 1989)

A direction under section 37(1) of the Children Act 1989 may concern only a child whose welfare is a question for determination in the family proceedings. It does not extend to a child whose possible welfare concerns merely come incidentally to the court’s attention. The consequential power to make an interim order under section 38(1)(b) is subject to the same limit.

In any event, an interim public-law order made without notice requires wholly exceptional circumstances. The parents must ordinarily have notice and a fair opportunity to be heard. The court must have a proper evidential basis, consider welfare and proportionality, and adopt the least interventionist course consistent with the child’s welfare.

Care proceedings concerning the infant E were started by the local authority. During those proceedings, the Family Court received information suggesting serious safeguarding concerns about E’s three young cousins, who lived with their parents and were not parties to, or the subject of, the proceedings.

The judge directed an investigation under section 37(1) of the Children Act 1989 into the cousins’ circumstances and made interim supervision orders under section 38(1)(b). The orders were made without notice to their parents. The local authority appealed, supported in principle by E’s mother, while E’s guardian opposed the appeal.

The central issue was whether the section 37 and consequential section 38 powers extended to children who were not the subject of the family proceedings.

1. Appeal allowed. The section 37 direction and the interim supervision orders were set aside. Baker LJ, with whom Lady Justice Elisabeth Laing and Lord Justice Underhill agreed, held that the judge had misunderstood the scope of section 37(1) of the Children Act 1989.

2. The phrase “family proceedings in which a question arises with respect to the welfare of any child” means proceedings in which the court must determine a welfare question about that child. It does not encompass a child whose possible welfare concern has merely come to the court’s attention. Section 37 is a limited, interim bridge between proceedings concerning a child and possible public-law proceedings concerning that same child. The consequential section 38(1)(b) power could not be used for the cousins.

3. The statutory scheme and the rules supported that construction. In particular, the service, disclosure, adjournment and party provisions proceeded on the basis that the child investigated was the child whose welfare was in issue in the existing proceedings. A wider construction would require procedural protections for the other child and those with parental responsibility which the rules do not provide.

4. Alternatively, the procedure was unfair. Even assuming that an interim order under section 38 could exceptionally be made without notice, the parents had received none and had no early return date at which to answer the allegations. Section 38(10) required consideration of whether a person opposed to the order could argue the case in full. They could not.

5. There was also no proper evidential basis for the interim orders. The judge had not considered the welfare checklist, proportionality under Article 8, or the least interventionist course. The purported appointment of E’s guardian for the cousins was ultra vires: a section 37 direction coupled only with an interim supervision order did not make the proceedings specified proceedings under section 41(6)(b).

• Court of Appeal (Civil Division): allowed the local authority’s appeal and set aside the section 37 direction and interim supervision orders: [2025] EWCA Civ 470.
• Family Court at Yeovil: in care proceedings concerning E, directed an investigation concerning E’s three cousins under section 37(1) of the Children Act 1989 and made interim supervision orders concerning them.