E (Section 37 Direction) [2025] EWCA Civ 470.

The appeal concerned care proceedings for baby girl E.

Background:

The issue on appeal, was whether Section 37(1) permits courts to order investigations and interim measures only for children involved in the proceedings or also for other children known during the case.

The appeal involved care proceedings for baby E, born 07/12/2024. At the 10/02/2025 CMH, the judge ordered a Section 37 investigation into the welfare of three cousins—children of maternal aunt A and partner B—who lived with Mum and E. The cousins were not parties to the proceedings. The judge also imposed interim supervision orders for the cousins and appointed E’s guardian as their guardian.

On 27/01/2025, the judge raised concerns about A’s home conditions, suggesting possible public law proceedings and Section 37 directions, expecting an urgent application. At the 10/02/2025 CMH, the guardian’s solicitor reported serious issues—firearm presence, faeces, flea bites, injuries, and possible domestic abuse. Mother and her representative were excluded during private discussions with the judge, local authority counsel, and guardian’s solicitor. The judge firmly held that Section 37 allowed investigations into non-subject children. The local authority acknowledged the concerns but opposed interim supervision, preferring to work with the family, though they did not oppose a Section 37 direction and raised concerns about orders without notifying parents.

Despite this, the judge ordered a Section 37 investigation into E’s cousins, imposed interim supervision, and appointed a guardian. A further hearing was set in eight weeks; A and B were invited, but Mum and her lawyer excluded. The local authority appealed the Section 37 report direction and interim order, supported by Mum’s counsel but opposed by the guardian. A and B were joined to the proceedings, however denied legal aid and so were unrepresented and absent at the appeal.

Judgment:

The Court of Appeal allowed the appeal and set aside the section 37 direction and interim supervision orders. ​ Lord Justice Baker delivered the leading judgment, with Lady Justice Elisabeth Laing and Lord Justice Underhill concurring.

Legal analysis:

The Court of Appeal agreed with the judge’s concerns for A’s children but ruled that the judge misinterpreted section 37, making the orders unfair due to procedural flaws, specifically:

• The judge misunderstood the scope of section 37, which applies only to children who are the subject of the proceedings.
• Section 37 helps the court explore options for handling the child’s case. It acts as a “jurisdictional bridge” between private and public law, allowing the court to request a report on the child’s situation.
• The 1989 Act sets limits between court powers and local authority duties, stressing minimal intervention for the child’s welfare. Sections 37 and 38 are exceptions and should be used narrowly.
• The FPR and 1991 Rules do not require section 37 or 38 orders to be served on non-parties. This lack of safeguards for non-subject children suggests section 37 doesn’t apply to them.
• Procedural Unfairness
• No notice was given to A and B about the court’s intention to make a section 37 direction or section 38 interim order.
  • The judge didn’t schedule an early hearing after making the order without notice, denying A and B a prompt chance to respond. They also failed to consider section 38(10), which requires assessing if opposing parties could fully argue their case.
  • The judge relied on oral submissions from the solicitor who read social services records, using insufficient evidence instead of proper written proof to make the interim supervision order.
  • The judgment lacked analysis of the welfare checklist under section 1(3) and proportionality considerations, essential when making public law orders.
  • Though the judge made ISOs, not ICOs, the orders still interfered with parental responsibility. The guardian’s broader section 37 view could allow even more intrusive orders, like interim care orders or section 38(6) directions.
  • The appointment of the guardian to represent the three children was outside the scope of the law because the proceedings were not “specified proceedings” under section 41(6)(b) of the Act. ​The children had not been joined as parties to the proceedings, and the appointment was not made under FPR rule 16.4.

 The court allowed the appeal on both grounds and set aside the section 37 direction and interim supervision orders.

Arguments made by the appellate counsel:

Local authority counsel made strong appellate submissions that shaped the Court of Appeal’s decision. While the guardian and judge faced criticism, their arguments in defence were also compelling. Both sides’ arguments are worth reading for full context. The Court of Appeal sympathised with the judge’s concern in protecting the children’s welfare.

Appropriate Judicial Response to Concerns About Non-Subject Children:

The Court of Appeal stated that the judge should have notified the relevant local authority about the concerns regarding A’s children and allowed disclosure of information from the proceedings to the social work team involved, rather than making a section 37 direction or interim orders. ​

Significance:

Hazel notes in the case summary that this judgment goes beyond interpreting section 37, stressing the need for courts to follow statutory rules, ensure fairness, and keep decisions proportionate in cases involving parental responsibility and children’s welfare. Fairness remains crucial, even in urgent child protection cases. Minimal intervention and the need for court-local authority cooperation is also noted by the writer.

Hazel pays tribute to the local authority counsel who appeared before the judge at first instance. By standing firm on procedural principles and raising concerns about fairness, the counsel demonstrated the critical role of legal professionals in safeguarding the integrity of the judicial process and having a thorough knowledge of law and procedure.

Case Summary by Hazel Samuriwo, with permission from The Family Law Week.

E (Section 37 Direction) [2025] EWCA Civ 470 judgment

For the full and unabridged case summary and key takeaways for practitioners, please see the complete case note by the author here.

4th Jun 2025

Call 2021| Admitted as a Solicitor: 2016