The judge grew concerned about the three children, aged four years and under, who lived with the girl’s aunt and her partner, while hearing the case. After the girl moved to the home for a short while, her social workers expressed concern about the ‘untidy, unhygienic and unsafe condition of the property’. They noticed fleabites, suspected domestic abuse and thought a gun may be kept in the home.
The question arose as to whether the judge could, as he claimed, order a s 37(1), Children Act 1989 investigation into the circumstances and, consequently, make a s 38(1)(b) interim supervision order. The judge asserted s 37 jurisdiction applied ‘where there are any children’.
However, Lords Justice Underhill and Baker and Lady Justice Elisabeth Laing disagreed. Delivering the main judgment, in Re E (section 37 direction) [2025] EWCA Civ 470, Baker LJ said: ‘Occasionally a case raises a point which has apparently not arisen before.
‘This is just such a case… Put simply, the question arising on this appeal is: does the court’s power under [ss 37 and 38] extend to any child about whom it becomes aware during the proceedings or only to a child who is the subject of the proceedings?’
Baker LJ said he shared the judge’s concerns about the three children but concluded that, in taking steps he thought necessary to protect them, he ‘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’.
Baker LJ pointed out the aunt and her partner were not given notice of the s 37 direction and consequent order, the judge failed to list the matter for an early hearing once notice was given, and the orders were made ‘largely on the basis of what he was told in court’, therefore with ‘insufficient evidential basis’.
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