Children Act 1989, section 38A

Power to include exclusion requirement in interim care order

Part IV Care and Supervision

(1)Where—

(a)on being satisfied that there are reasonable grounds for believing that the circumstances with respect to a child are as mentioned in section 31(2)(a) and (b)(i), the court makes an interim care order with respect to a child, and

(b)the conditions mentioned in subsection (2) are satisfied,

the court may include an exclusion requirement in the interim care order.

(2)The conditions are—

(a) that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and

(b)that another person living in the dwelling-house (whether a parent of the child or some other person)—

(i)is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and

(ii)consents to the inclusion of the exclusion requirement.

(3)For the purposes of this section an exclusion requirement is any one or more of the following—

(a)a provision requiring the relevant person to leave a dwelling-house in which he is living with the child,

(b)a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and

(c)a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated.

(4)The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order.

(5)Where the court makes an interim care order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.

(6)Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.

(7)Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order.

(8)Where a power of arrest is attached to an exclusion requirement of an interim care order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.

(9)Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act.

(10)If, while an interim care order containing an exclusion requirement is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement.F581]

Definitions used in section 38A 9

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
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
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
dwelling-house

“dwelling-house” includes—

(a)

any building or part of a building which is occupied as a dwelling;

(b)

any caravan, house-boat or structure which is occupied as a dwelling;

and any yard, garden, garage or outhouse belonging to it and occupied with it;

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

“harm” has the same meaning as in section 31(9) and the question of whether harm is significant shall be determined in accordance with section 31(10);

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

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act
relevant person

“relevant person”, in relation to an enforcement order, means a person subject to the order.

Defined in Sch.A1 para.1(1) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

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

Cases considering section 38A 3

M (Care Order: Risk: Family Placement), Re

[2025] EWCA Civ 163 · 21 February 2025

An order under section 38A excluded the father from the family home and formed part of the protective framework. On appeal, the care order was replaced with an interim care order supported by the same form of order pending remittal (see paras [13]; [77]; [118]).

N (Children: Interim Order/ Stay), Re

[2020] EWCA Civ 1070 · 12 August 2020

The exclusion order against the father remained fully effective when the children were ordered to return to their mother under the continuing interim care orders (see para [34]).

Manchester City Council v D (Application for Permission Withdraw Proceedings after Abduction)

[2021] EWHC 1191 (Fam) · 11 May 2021

The provision was relevant to the interim exclusion order and the parents’ removal of the children during the care proceedings. The court noted that the removal was not strictly a breach of the exclusion order but was contrary to its protective purpose. (see paras [5]; [10]; [12])

What each judgment says about section 38A is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F581Ss. 38A and 38B inserted(1.10.1997) by 1996 c. 27, ss. 52, Sch. 6 para. 1(with Sch. 9 para. 5); S.I. 1997/1892, art.3