E (Section 37 Direction, The Children Act 1989)

The Court of Appeal considered the meaning of sections 37(1) and 38(1)(b) of the Children Act 1989 and whether those provisions permit a court in family proceedings to direct a local authority to investigate, and to make interim public law orders, in respect of children who are not the subject of the proceedings. The court held that section 37(1) is to be read as permitting a direction only in relation to a child "in respect of whom a question arises in the proceedings" (ie the child who is the subject of the proceedings), and does not authorise investigation or interim orders in respect of unrelated third children who merely come to the court's attention incidentally.

The court also found that, even if a broader power existed, the procedure adopted in this case was unfair: no notice was given to the parents of the three children; the evidential basis for making interim orders was inadequate; the judge failed to consider the requirement in section 38(10) to consider whether those opposed to the order had been in a position properly to argue their case; and the purported appointment of the children’s guardian was ultra vires. For these reasons the s.37 direction and the interim supervision orders were set aside.

Background and procedural history:

• The proceedings in the Family Court at Yeovil concerned a baby, E (born 7 December 2024), and an interim care order was made for E on 27 January 2025. At a case management hearing on 10 February 2025 the judge directed a section 37 investigation and made interim supervision orders in respect of three other children (the children of A and B), who were not the subject of the proceedings concerning E. An order was drawn under the case number for E excluding E's mother from a later hearing and appointing the guardian for the three children. The local authority appealed; permission to appeal was granted and the Court of Appeal heard the appeal.

Nature of the application and issues:

• The appeal raised whether the court's power under s.37(1) to direct a local authority to investigate "the child's circumstances" and the consequent power under s.38(1)(b) to make interim care or supervision orders extends to any child who comes to the court's attention during proceedings or is limited to the child who is the subject of the proceedings.
• Secondary issues were whether the orders could properly be made without notice to the parents of the three children and whether the appointment of the children’s guardian in those circumstances was lawful.

Court's reasoning:

The court analysed the language of s.37(1) alongside related provisions (including s.1, s.7, s.31, s.38, s.41 and Schedule 3) and considered the statutory scheme and underlying purposes of the Children Act 1989, which narrow the circumstances in which the State may intervene in family life. The Court treated prior case law (eg Re CE; Lambeth LBC v TK & KK; Re K (Children)) as supporting the orthodox view that s.37 is a "jurisdictional bridge" focused on the child who is the subject of the proceedings.

The Family Procedure Rules (and the predecessor 1991 Rules) were treated as a contemporaneous scheme that reinforces the narrower interpretation: rules provide for service of section 37 directions and reports on the parties to the proceedings and the appropriate authority but make no provision for notice or participation by unrelated third-party parents. The court held that, if the broader interpretation had been intended, the rules would need to provide for notice, service and opportunities to be heard to satisfy common law fairness and Articles 6 and 8 requirements.

Even if a court could in exceptional cases make orders in respect of non-subject children, the procedure here failed minimum standards of fairness: there was no notice to the parents, inadequate evidential basis for the interim order, no prompt return hearing to allow affected parents to be heard and the guardian's appointment in respect of children who were not "specified proceedings" was ultra vires.

Outcome and practical observations:

• The Court allowed the appeal, set aside the section 37 direction and the interim supervision orders and emphasised that where a judge becomes aware of concerns about other children the appropriate step is to notify the relevant local authority and, if necessary in an emergency, to use the specific urgent powers in Part V (eg emergency protection orders), or to ensure procedural fairness in the use of any Part IV powers.

Appeal allowed. The Court of Appeal held that section 37(1) should be read as permitting a direction only in respect of a child whose welfare is a question in the family proceedings before the court; it does not authorise directing investigations or making interim care or supervision orders in respect of unrelated third children who merely come to the court's attention. Alternatively, the Court held the procedure adopted was unfair (no notice to the parents, inadequate evidence, failure to list an early return hearing, and an unlawful appointment of the guardian), and accordingly the section 37 direction and interim supervision orders were set aside.

Appeal from the Family Court at Yeovil (HHJ Davis) under case number TA25C50011. Interim orders made 10 February 2025; local authority filed notice of appeal 14 February 2025; permission to appeal granted 13 March 2025; appeal heard 26 March 2025; judgment of the Court of Appeal ([2025] EWCA Civ 470) delivered 16 April 2025.