Children Act 1989, section 38

Interim orders

Part IV Care and Supervision

(1)Where—

(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b)the court gives a direction under section 37(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

(3)Where, in any proceedings on an application for a care order or supervision order, a court makes a [F574child arrangements order with respect to the living arrangements ofF574] the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.

[F575 (3A)For the purposes of subsection (3), a child arrangements order is one made with respect to the living arrangements of the child concerned if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following—

(a)with whom the child is to live, and

(b)when the child is to live with any person.F575]

(4)An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—

F576(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F577(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in a case which falls within subsection (1)(a), the disposal of the application;

(d)in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;

[F578 (da)in a case which falls within subsection (1)(b) and in which—

(i)no direction has been given under section 37(4), and

(ii)no application for a care order or supervision order has been made with respect to the child,

the expiry of the period of eight weeks beginning with the date on which the order is made;F578]

(e)in a case which falls within subsection (1)(b) and in which—

(i)the court has given a direction under section 37(4), but

(ii)no application for a care order or supervision order has been made with respect to the child,

the expiry of the period fixed by that direction.

F579(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.

(7)A direction under subsection (6) may be to the effect that there is to be—

(a)no such examination or assessment; or

(b)no such examination or assessment unless the court directs otherwise.

[F580 (7A)A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B)When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—

(a)any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b)the issues with which the examination or other assessment would assist the court,

(c)the questions which the examination or other assessment would enable the court to answer,

(d)the evidence otherwise available,

(e)the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f)the cost of the examination or other assessment, and

(g)any matters prescribed by Family Procedure Rules.F580]

(8)A direction under subsection (6) may be—

(a)given when the interim order is made or at any time while it is in force; and

(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.

(9)Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.

(10)Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.

Definitions used in section 38 9

a care order

“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

Defined in s.31(11) · see it in the full Act
care order

“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;

Defined in s.105(1) · see it in the full Act
a supervision order

“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

Defined in s.31(11) · see it in the full Act
supervision order

“supervision order” has the meaning given by section 31(11);

Defined in s.105(1) · see it in the full Act
the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
child arrangements order

"child arrangements order " means an order regulating arrangements relating to any of the following—

(a)

with whom a child is to live, spend time or otherwise have contact, and

(b)

when a child is to live, spend time or otherwise have contact with any person;

Defined in s.8(1) · see it in the full Act

“child arrangements order” has the meaning given by section 8(1);

Defined in s.105(1) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
prescribed

“prescribed” means prescribed by regulations made under this Act;

Defined in s.105(1) · see it in the full Act

Cases considering section 38 174

Poole Borough Council v GN (through his litigation friend “The Official Solicitor”) and another

[2019] UKSC 25 · 6 June 2019

The section permits an interim care order only where the statutory threshold has the required evidential basis. The pleaded facts provided no lawful basis for an interim order removing the children from their mother. (see paras [23]-[24]; [90]) An interim care order requires reasonable grounds for believing that the section 31(2) circumstances exist. No such grounds were pleaded because the harm was unrelated to any lack of reasonable parental care. (see paras [23]; [90])

Kent County Council (Appellants) v. G and others (FC) (Respondents)

[2005] UKHL 68 · 24 November 2005Interprets

The court construed the interim-care-order scheme as temporary and directed towards swift resolution of care proceedings. It did not authorise continued judicial management of future parental treatment. The provision was used to identify the power to make an interim care order, which gives the local authority parental responsibility while the proceedings remain unresolved. The court used the reasonable-grounds threshold for an interim care order to explain its temporary and protective character. It was part of the statutory context for construing section 38(6). The court relied on the eight-week initial limit and four-week subsequent period as evidence that interim intervention and assessment are intended to be short-term. The court used the four-week limit on renewed interim orders to reinforce the conclusion that section 38(6) does not envisage many months of assessment and treatment. Section 38(6) permits directions only for a medical or psychiatric examination or other assessment of the child. It may encompass the child’s family context and present parental capacity, but not a prolonged programme focused on treating a parent or achieving long-term change. The court construed subsection (7), with subsection (6), as showing that the power enables the court both to obtain necessary information and to control the number and type of assessments imposed on a child.

In re S (FC) In re S and Others In re W and Others (First Appeal (FC) In re W and Others (Second Appeal (Conjoined Appeal)

[2002] UKHL 10 · 14 March 2002Interprets

An interim care order is a temporary holding measure until the court can decide whether a final care order serves the child’s best interests. It cannot be used to maintain judicial supervision after that decision can properly be made. An interim care order may be made while an application for a care or supervision order is adjourned, but it ends when the substantive application is disposed of. An interim care order may accompany a direction under section 37 requiring an investigation, but it ceases when the relevant care or supervision application is disposed of.

154 more judgments, and what each says about section 38, are in the case-law panel in the full Act.

Amendments and notes

10 notes from legislation.gov.uk

Amendments

  1. F574Words in s. 38(3) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 32(2); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  2. F575S. 38(3A) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 32(3); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  3. F576S. 38(4)(a) omitted (22.4.2014) by virtue of Children and Families Act 2014 (c. 6), ss. 14(4)(a)(i), 139(6); S.I. 2014/889, art. 4(c) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  4. F577S. 38(4)(b) omitted (22.4.2014) by virtue of Children and Families Act 2014 (c. 6), ss. 14(4)(a)(ii), 139(6); S.I. 2014/889, art. 4(c) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  5. F578S. 38(4)(da) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), ss. 14(4)(b), 139(6); S.I. 2014/889, art. 4(c) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  6. F579S. 38(5) omitted (22.4.2014) by virtue of Children and Families Act 2014 (c. 6), ss. 14(4)(c), 139(6); S.I. 2014/889, art. 4(c) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  7. F580S. 38(7A)(7B) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), ss. 13(11), 139(6); S.I. 2014/793, art. 2 (with transitional provisions in S.I. 2014/1042, arts. 5, 11) this amendment is subject to savings and/or transitional provisions, see the commentary.

Modifications

  1. C42S. 38 modified (1.11.2012) by Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), regs. 1(2), 5(2) (as amended (31.12.2020) by S.I. 2019/519, reg. 1(1), Sch. para. 37(3) (with reg. 8 (as amended by S.I. 2020/1574, regs. 1, 5(2))); 2020 c. 1, Sch. 5 para. 1(1))
  2. C43S. 38(1) restricted (14.10.1991) by S.I. 1991/1395, rules 1, 28

Commencement

  1. I35S. 38 wholly in force at 14.10.1991, see s. 108(2)(3) and S.I. 1991/828, art. 3(2)