Children Act 1989, section 40

Orders pending appeals in cases about care or supervision orders

Part IV Care and Supervision

(1)Where—

(a)a court dismisses an application for a care order; and

(b)at the time when the court dismisses the application, the child concerned is the subject of an interim care order,

the court may make a care order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(2)Where—

(a)a court dismisses an application for a care order, or an application for a supervision order; and

(b)at the time when the court dismisses the application, the child concerned is the subject of an interim supervision order,

the court may make a supervision order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(3)Where a court grants an application to discharge a care order or supervision order, it may order that—

(a)its decision is not to have effect; or

(b)the care order, or supervision order, is to continue to have effect but subject to such directions as the court sees fit to include in the order.

(4)An order made under this section shall only have effect for such period, not exceeding the appeal period, as may be specified in the order.

(5)Where—

(a)an appeal is made against any decision of a court under this section; or

(b)any application is made to the appellate court in connection with a proposed appeal against that decision,

the appellate court may extend the period for which the order in question is to have effect, but not so as to extend it beyond the end of the appeal period.

(6) In this section “the appeal period” means—

(a)where an appeal is made against the decision in question, the period between the making of that decision and the determination of the appeal; and

(b)otherwise, the period during which an appeal may be made against the decision.

Definitions used in section 40 7

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
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 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
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

Cases considering section 40 6

B-T (A Child: Threshold Conditions)

[2020] EWCA Civ 697 · 3 June 2020Limits

The court interpreted section 40 as a short-term safety net during the appeal period. It is available after dismissal of care proceedings even where the threshold has not been established and must be exercised by reference to welfare and proportionality. (see paras [52]-[60]) The court treated section 40(1) as permitting a care order during the appeal period where a care application has been dismissed and an interim care order was in force. It held that a prior threshold finding is not an additional condition. (see paras [53]-[54], [58]) The court rejected reading section 40(1)(a) as applying only where the section 31(2) threshold had been crossed. No such additional words could be inserted into the provision. (see para [58]) The court identified section 40(2) as the parallel power concerning dismissal of a supervision application where an interim supervision order is in force. It was not separately applied on the facts. (see paras [53]-[54]) The court identified section 40(3) as permitting suspension or continuation of a care or supervision order, subject to directions, after discharge. It forms part of the short-term appeal protection scheme. (see paras [53]-[54]) The court treated section 40(4) as limiting an order made under section 40 to a specified period not exceeding the appeal period. (see paras [53]-[54]) The court identified section 40(6) as defining the appeal period by reference to the period before appeal determination or, absent an appeal, the period in which an appeal may be made. (see paras [53]-[54])

MA & Ors (Children), Re

[2009] EWCA Civ 853 · 31 July 2009Limits

Identifies the customary statutory mechanism for making a care order pending determination of an appeal against dismissal of care proceedings (see para [6]). Limits an interim care order pending appeal to cases where the child was already subject to an interim care order when the proceedings were dismissed. That condition was not met because these children were only accommodated (see para [6]).

T (Fact-Finding: Second Appeal)

[2023] EWCA Civ 475 · 5 May 2023

A short interim order could have been made while the local authority decided whether to appeal, instead of unlawfully continuing care orders solely to facilitate welfare planning (see para [73]).

What each judgment says about section 40 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I37S. 40 wholly in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)