Supreme Court refuses Guardian permission to appeal setting aside of direction by judge to investigate circumstances of children not subject to proceedings

In April this year, the Court of Appeal 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, 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 background to the case was that on 27 January, the local authority started care proceedings in respect of LA and her child, MA.

At an urgent hearing on the same day, HHJ Davis made an interim care order and listed a case management hearing.

During the urgent hearing, the judge expressed concern about the condition of the maternal aunt (TA)'s property, where MA had been staying.

He instructed LA and her representatives to leave court and asked the local authority for information about their involvement with TA and her family. The judge said that he wanted the local authority to take steps to protect the maternal aunt’s three children.

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In the course of care proceedings involving MA, the judge made a section 37 direction in respect of TA’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.

The Court of Appeal allowed the local authority’s appeal against the making of the section 37 direction and the making of the interim supervision order.

The Children’s Guardian appealed to the Supreme Court. A panel comprising Lord Briggs, Lord Stephens and Lord Leggatt refused permission to appeal.

Lottie Winson