Court of Appeal sets aside direction from judge to local authority to investigate circumstances of children not subject to proceedings

April 25, 2025

The Court of Appeal has set aside a judge’s direction for a local authority to investigate the circumstances of three children who were not the subject of proceedings, and to make the children subject to interim supervision orders, finding he was not entitled to do so.

In E (Section 37 Direction) [2025] EWCA Civ 470 (16 April 2025), Lord Justice Baker, with whom Lady Justice Elizabeth Laing and Lord Justice Underhill agreed, said: "More than a third of a century has passed since the implementation of the Children Act 1989. In the intervening years, its provisions have been trawled over in numerous reported decisions. Yet occasionally a case raises a point which has apparently not arisen before. This is just such a case."

Lord Justice Baker concluded that although the judge was “rightly concerned” about the three other children, he was not entitled to direct the local authority under section 37 CA to carry out an investigation of the circumstances of the children or to make them subject to interim orders under section 38.

The case concerned a baby girl, “E”, born in December 2024. Her mother, “M”, is aged 21.

The local authority was involved with M prior to the baby's birth and had a range of concerns arising from her lifestyle, excessive drinking and behaviour. Arrangements were made for M and E to move to a mother and baby foster placement.

In January 2025, while waiting for the placement to become available, M arranged for E to stay at the home of M's sister - E's aunt, "A" - and her partner, "B", and their three children aged 4, 2 and 12 weeks.

Social workers visited the property on several occasions and were concerned about the untidy, unhygienic and unsafe condition of the property.

In the course of care proceedings involving E, the judge made a section 37 direction in respect of A and B’s three children, who were not the subject of the proceedings, and placed them under interim supervision orders.

The local authority appealed the judge’s decision on the following grounds:

The judge was wrong in law to make an order under s.37(1) and/or an interim supervision order under s.38(1) of the Children Act 1989 in respect of three children who were not the subject children in the proceedings in which the orders were made, nor the children of any party to the proceedings.
The judge was wrong in law to make the orders in respect of the three children under s.37(1) and/or an interim supervision order under s.38(1) of the Children Act 1989 without notice to their parents or allowing them the opportunity to make representations.

Baker LJ noted: “The question arising on this appeal is: does the court's power under section 37(1) to direct a local authority to carry out an investigation into the child's circumstances, and the consequential power to make interim public law orders under section 38(1)(b), extend to any child about whom it becomes aware during the proceedings or only to a child who is the subject of the proceedings?”

On behalf of the local authority, counsel (Ms Pike) submitted that the judge was “wrong in law” to make the orders under sections 37 and 38 in respect of the three children of A and B.

She submitted that section 37 requires the satisfaction of several conditions before the court may exercise its discretionary power: (a) that there is a child; (b) that there are family proceedings; (c) that a question arises therein with respect to the child's welfare; and (d) it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him.

In respect of (a) and (b), she noted there has to be a connection between the "child" and the "family proceedings", to enable the court to exercise its power. Here, the three children of A and B were not the subject of the family proceedings, nor the children of the parties to those proceedings, nor in the care of any party to those proceedings. The "family proceedings" before the court only concerned the children's cousin, E.

In respect of (c), she argued that no "question" arose in the proceedings with respect to the three children's welfare. The information which came to the court's attention about their welfare was incidental to the family proceedings it was hearing.

Baker LJ said: “In short, Ms Pike submitted, the court made the orders in a 'legal vacuum'.”

Under ground 2, counsel for the local authority submitted that, if the court was entitled to exercise its s.37(1) powers over the non-subject children, the judge had been wrong in law to make the orders under sections 37 and 38 without notice to A and B, or allowing them the opportunity to make representations.

Further, counsel for the local authority identified a series of features of the hearing and the order made - characterised as “procedural irregularities”:

The guardian had no locus to make an application for a s.37 direction or a s.38 interim order in respect of children whom she was not representing.
There was no evidence before the court save for the original social worker's statement filed with the care application. There was no evidence from the social worker allocated to A and her family. The local authority was only afforded a brief opportunity during the hearing to obtain updating information.
The next hearing date was listed some eight weeks later, depriving A and B of any opportunity to meaningfully engage with the process for a significant period of time.
The return hearing listed in April was within the umbrella of the proceedings concerning E, yet E's mother was directed not to attend.
The appointment of the guardian to represent the three children was outside the rules because the proceedings did not fall within the definition of "specified proceedings" under s.41.

Baker LJ said: “Under ground 2, Mr Calway [for the second respondent] accepted that procedural fairness applies to cases in which the court exercises powers of its own motion. But he submitted that in this case the court was not making orders which led to any direct interference in the parental responsibility of A and B.

“It was not inappropriate for the guardian to raise concerns [in January] and her intervention at the hearing [in February] was in response to the comments made by the judge at the earlier hearing. Mr Calway conceded that it may have been preferable to have given notice to A and B after the earlier hearing, and also to list the matter for the next hearing sooner than eight weeks, but even taking those matters in account, the judge was acting within his discretion when making the orders in their absence.”

Mr Calway defended the guardian and his instructing solicitor's actions. He referred to Cafcass guidance to guardians to be aware of connected children and to be aware in a safeguarding sense of what may be happening.

He argued the guardian had “justifiable concerns” which she raised with the judge at the first hearing and “acted in accordance with his directions thereafter”.

Discussing the case, Baker LJ said: “I fully share the judge's concerns about these three young children. The reports in the social worker's initial statement about the conditions at A's house were very alarming and it was entirely understandable that he asked to be updated at the hearing [in February]. […] But I conclude that in taking steps he thought necessary to protect the three children, the judge misunderstood the scope of s.37. Furthermore, in his anxiety about the three children, and placing them under interim supervision orders, he overlooked the need to ensure that the procedure he adopted was fair.”

He added: “At first glance the interpretation of section 37 proposed by the guardian and adopted by the judge is tenable. But on closer scrutiny, I conclude that it is wrong.”

Outlining his reasoning, Baker LJ said: “First, there is the language in the subsection. If one focuses only on the words "any child", one might conclude that the power extends to any child who comes to the court's attention during the proceedings. But it is necessary to look at the whole phrase – "any family proceedings in which a question arises with respect to the welfare of any child".

“In my view, that plainly means "proceedings in which a question arises for determination about the welfare of a child". It does not mean "proceedings in which the court becomes aware of a concern about the welfare of a child".”

He observed that the “paradigm situation” in which a section 37 report is ordered is in the course of proceedings about a child under Part II of the Children Act 1989.

He said: “In most proceedings, where the court concludes it needs information about the welfare of the subject child in order to decide whether to make orders under section 8(1), it orders a report under section 7. But when a judge becomes concerned that the child's circumstances are such that it may be appropriate for the child to be made subject to a public law order under section 31, he has the additional power to make the direction under section 37.

“Section 37 thereby provides, in the words of McFarlane LJ in Re K (Children), "a jurisdictional bridge between private law proceedings under Part 2 of the Act, in which a local authority normally plays no part, and the public law provisions in Part 4".”

Baker LJ added that “further support” for this interpretation is provided in Hershman and McFarlane Children: Law and Practice at paragraph C1012, where the editors summarise the requirements for a direction under s.37(1) in these terms:

"In order to give such a direction … the following conditions must be satisfied:

the proceedings must be 'family proceedings';
a question must arise in those proceedings with respect to the welfare of the child whose circumstances are to be investigated; and
the court must consider that it may be appropriate for a care or supervision order to be made with respect to the child" [emphasis added].”

The Court of Appeal judge went on to observe that if it was intended that the power in family proceedings to give a direction under section 37, and the consequential power under section 38(1)(b) to make an interim care or supervision order, should extend to children who are not the subject of the proceedings, “there would have to be provision in the rules covering such an eventuality which complied with common law principles of fairness and with the provisions of ECHR, in particular Article 6 and the procedural requirements of Article 8”.

He noted the rules would have to include the following provisions:

(1) either (a) for the court to give notice of its intention to make the direction and interim order to those persons with parental responsibility for those children who are not already parties to the proceedings or (b) permitting the court to make the direction and order without notice to such persons;

(2) for service of the direction on those persons;

(3) for those persons to file evidence and make representations in response to the proposed direction and order, or apply to set aside the direction and order if made without notice;

(4) for the disclosure of evidence to such persons, and the non-disclosure of evidence about the children who are subject to the direction to those parties to the proceedings who have no connection with those children, and

(5) the service of the report on those persons with parental responsibility for those children.

He continued: “The fact that the FPR, and the original 1991 Rules, are silent about these matters is a clear indication that their draftsman considered that the power in family proceedings to give a direction under section 37, and the consequential power under section 38(1)(b) to make an interim care or supervision order, do not extend to children who are not the subject of the proceedings.

“For all of those reasons, I conclude the judge was not entitled to make the section 37 order in respect of the three children of A and B and that the appeal should therefore be allowed on ground 1.”

Baker LJ further accepted the local authority's arguments under ground 2 that the procedure adopted in the case was “unfair” for the following reasons:

No notice was given to A or her partner that the court was considering making a section 37 direction and a consequential order under section 38(1). The cases in which an application in children's proceedings can be made without notice are defined in FPR rule 12.16. They do not include applications for orders under Part IV.
Having decided to make an order without notice to A and B, the judge erred in failing to list the matter for an early hearing once notice had been given.
The judge made the orders largely on the basis of what he was told in court.
The judgment contained no consideration of the legal principles to be applied when considering whether to make an interim care or supervision order.
The appointment of the guardian to represent the three children was “ultra vires”.

On the final point, he said: “The power to appoint a guardian is confined to (a) specified proceedings and (b) under FPR rule 16.4.

“Under s.41(6)(b), proceedings in which a court has given a direction under section 37(1) are only specified proceedings where the court "has made, or is considering whether to make, an interim care order".

“Once the judge decided to make an interim supervision order, the proceedings were not "specified". The purported appointment of the guardian was plainly not made under rule 16.4 because (1) the judge clearly thought he was making it following the section 37 direction and the interim supervision order, (2) the children had not been joined as parties to the proceedings, and (3) in my view could not conceivably have been joined as parties to these proceedings which concerned E.”

Allowing the appeal, Lord Justice Underhill concluded: “The judge here was rightly concerned about the three other children in the house. […] Having considered representations from the parties to the proceedings, he would have been justified in allowing the disclosure of information from these proceedings to the social work team involved with the three children. But he was not, in my view, entitled in these proceedings to direct the local authority to carry out an investigation of the circumstances of the three children or to make them subject to interim orders under section 38.”

The section 37 direction and the interim supervision orders under section 38(1)(b) were set aside.

Lady Justice Elizabeth Laing and Lord Justice Underhill agreed.

Lottie Winson