Limitation of Section 37/38 Orders to Children Who Are Subject of Proceedings

1. Introduction

This commentary examines the Court of Appeal’s decision in E (Section 37 Direction) [2025] EWCA Civ 470, handed down on 16 April 2025 by Baker LJ (with whom Laing LJ and Underhill LJ agreed). The appeal addressed whether the Children Act 1989, sections 37(1) and 38(1)(b), empower a family court to (a) direct a local authority to investigate the circumstances of any child brought to the court’s attention during proceedings, and (b) place that child under an interim care or supervision order even if that child is not the subject of the original proceedings.

Parties and key issues:

Subject child: E, an infant in care proceedings brought by the local authority.
Non-subject children: Three cousins of E, living with E’s aunt “A” and her partner “B”.
Lower-court judge’s action: Made a section 37 direction and interim supervision orders in respect of the three cousins, without notice to their parents, alongside E’s care proceedings.
Local authority’s appeal: Challenged both (1) the scope of the court’s power under sections 37 and 38, and (2) the fairness of making orders without notice to the non-subject children’s parents.

2. Summary of the Judgment

The Court of Appeal allowed the local authority’s appeal and set aside the section 37 direction and the interim supervision orders made in respect of the three non-subject children. Baker LJ held that:

The power in section 37(1) is confined to directing an investigation into the circumstances of the child who is the subject of the family proceedings in which the question of welfare arises. It does not extend to children who merely come to the court’s attention but are not parties or subjects of those proceedings.
By parity of reasoning, section 38(1)(b)’s consequent power to make interim care or supervision orders applies only to the same child.
Even if the broader interpretation were arguable, the procedure—making orders without notice to the non-subject children’s parents and without any immediate opportunity for them to be heard—was unfair and contrary to both the Family Procedure Rules and Articles 6 and 8 ECHR.
The appeal was therefore allowed on ground 1 (scope) and ground 2 (fairness), the orders were set aside, and the matter remitted for appropriate family‐law process if protection of the three children remained in issue.

3. Analysis

3.1 Precedents Cited

Re CE (Section 37 Direction) [1995] 1 FLR 26: Wall J described s.37 reports as “interim measures” assisting the court’s assessment of options for dealing with the subject child.
Lambeth LBC v TK & KK [2008] EWCA Civ 103: Wilson LJ distilled three threshold requirements for s.37(1): (a) a “child”; (b) family proceedings; (c) a question with respect to that child’s welfare.
Re K (Children) [2012] EWCA Civ 1549: McFarlane LJ explained that s.37 bridges private law (Part II) and public law (Part IV) so that, following a s.37 report, a local authority may decide whether to issue care/supervision proceedings under s.31.
Re L (A Child) [2013] EWCA Civ 179: Interim care orders made without notice were upheld in wholly exceptional circumstances where an EPO would otherwise have been necessary.
X County Council v B (Emergency Protection Orders) [2004] and Re X (A Child) (Emergency Protection Orders) [2006]: Munby J and McFarlane J underscored the exceptional, draconian nature of EPOs.

3.2 Legal Reasoning

Baker LJ’s reasoning was structured around four pillars:

Textual Context: The phrase “any family proceedings in which a question arises with respect to the welfare of any child” must be read as referring to proceedings about that child, not merely proceedings in which the court becomes aware of concerns about another child.
Statutory Scheme: Sections 7, 10, 31–42 and 44–45, and the EPO regime, demonstrate that public‐law intervention (care or supervision orders) is reserved for the child who is the subject of proceedings, subject to strict threshold criteria and procedural safeguards.
Purpose of s.37 Bridge: s.37 creates a “jurisdictional bridge” from private law proceedings (Part II) to public law powers (Part IV) for the subject child only. Allowing it to span to non-subject children would disrupt the Act’s unified public‐law gateway under s.31 and s.44.
Rules-based Interpretation: Family Procedure Rules 12.17 (and its predecessor rule 4.26) provide for service of directions and reports only on parties to the proceedings and the local authority, implying that s.37 powers do not extend to non-parties or non-subjects.

3.3 Fairness and ECHR Considerations

The court further held that, even if s.37/38 could extend to non-subject children, fundamental procedural fairness (Articles 6 & 8 ECHR) required:

Notice of proposed section 37 directions and interim orders to those holding parental responsibility.
An opportunity for those parents to make representations or to apply to set aside orders made ex parte.
Restrictions on the duration of any ex parte order and listing an early return hearing.

3.4 Impact on Future Cases

This decision clarifies that:

Court‐ordered s.37 investigations and s.38 interim orders are confined to the child who is the subject of proceedings.
Judges encountering welfare concerns about other children must proceed by notifying the appropriate local authority, convening a child protection conference or commencing separate public‐law proceedings under the Public Law Outline.
Procedural safeguards in the Family Procedure Rules and ECHR must be strictly observed whenever interim public‐law orders are considered, particularly as regards notice and prompt return hearings.

4. Complex Concepts Simplified

Family Proceedings: Proceedings under Part II of the Children Act (e.g., child arrangements orders) or other specified enactments dealing with children.
Section 37 Direction: A court direction ordering a local authority to investigate the subject child’s circumstances when it appears a care or supervision order may be appropriate.
Section 38 Interim Orders: Having given a section 37 direction, the court may make a short‐term interim care or supervision order if there are reasonable grounds to believe the threshold in section 31(2) is met.
Care Order vs Supervision Order: A care order places the child in the local authority’s care; a supervision order imposes duties on the authority to advise, assist and possibly direct the child and those with parental responsibility, but does not remove the child from parental care.
Emergency Protection Order (EPO): A separate, exceptional power under section 44 for immediate short‐term protection (max 8–15 days) without notice if there is a risk of significant harm.

5. Conclusion

The Court of Appeal in E (Section 37 Direction) [2025] EWCA Civ 470 has firmly limited the scope of section 37(1) directions and section 38(1)(b) interim orders to the child who is the subject of the family proceedings in which the welfare question arises. It reinforces the Children Act 1989’s careful partition between private law and public law jurisdictions, upholds strict procedural safeguards, and underscores the necessity of proper notice and early return hearings before making interim orders that affect parental responsibility. The decision will guide practitioners and judges to channel concerns about non-subject children into appropriate public‐law processes, ensuring that the least interventionist and most procedurally fair steps are taken for child protection.