LOCAL AUTHORITY INVOLVEMENT IN SECTION 37 CASES

STATUTE, CASE LAW and REGULATIONS

37 Powers of court in certain family proceedings.

(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.

(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should—

(a)apply for a care order or for a supervision order with respect to the child;

(b)provide services or assistance for the child or his family; or

(c)take any other action with respect to the child.

(3) Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of—

(a)their reasons for so deciding;

(b)any service or assistance which they have provided, or intend to provide, for the child and his family; and

(c)any other action which they have taken, or propose to take, with respect to the child.

(4) The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.

(5) The local authority named in a direction under subsection (1) must be—

(a)the authority in whose area the child is ordinarily resident; or

(b)where the child is not ordinarily resident in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the direction is being given.

(6) If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child—

(a)they shall consider whether it would be appropriate to review the case at a later date; and

(b)if they decide that it would be, they shall determine the date on which that review is to begin.

SECTION 41 (6)(b) – “specified proceedings” include cases where the court has given a direction under section 37(1) and has made, or is considering to make, an interim care order.

SECTION 41(1) – in specified proceedings the court shall appoint a Cafcass officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard the child’s interests

SECTION 22 (1)(a) – definition of a looked after child which includes a child in the local authority’s care

SECTION 105 (1) – CARE ORDER – reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order

SECTION 25A(1) – if the local authority is looking after a child it must appoint an Independent Reviewing Officer

SECTION 22A – the local authority has a duty to accommodate a child in care

SECTION 22B – the local authority has a duty to maintain a looked after child

SECTION 22C – provides ways in which a looked after child may be accommodated

SECTION 51(1) and (3) SENIOR COURTS ACT 1981 (costs)

CARE PLANNING, PLACEMENT and CASE REVIEW (ENGLAND) REGULATIONS 2010 ( 2010 regulations ) – sets out the governance of placements of looked after children

REGULATIONS 15-20 of the 2010 REGULATIONS – sets out how the local authority must act when placing a child with “P” including the assessment to be completed and confirms the making of a care order in respect of a child doesn’t mean that child must be removed from the parents care before a placement decision is made

RULE 12.17 Family Procedure Rules 2010

PRACTICE DIRECTION PD12B 14.13 Reports

A court has jurisdiction to order further section 37 reports where there were relevant fresh circumstances, where the original direction had not been complied with or where the investigation had failed to a “significant degree to engage with the courts concerns” (Re K (Children) [2012] EWCA Civ 1549)

Where an order was made under S37(1) Children Act 1989, and the proceedings had become “specified proceedings” by virtue of S41(6)(b), those proceedings ceased to be “specified” if the local authority, as a result of its investigation, decided not to apply for a care or supervision order and so informed the court (RE CE (SECTION 37 DIRECTION) [1995] 1 FLR 26)

The court should not order the local authority to conduct a s37 investigation unless it appeared that it might be appropriate to make a public law order. In purely private law proceedings any investigation required should be conducted by other means (Re L (SECTION 37 DIRECTION) [1999] 1 FLR 984)

A s37 report is an essentially interim measure: it is a means of assisting the court in its assessment of the options available for dealing with the child (RE CE (SECTION 37 DIRECTION) [1995] 1 FLR 26)

A local authority can be ordered to pay costs depending on its conduct within the private law proceedings (HB v PB, OB and LB of Croydon [2013] EWHC 1956 (Fam))

PROTOCOL

The court can direct either of the following to produce a section 37 report:
The local authority where the child is ordinarily resident or
The local authority for the area where the circumstances that concern the court arose.

Any issue over nomination must be resolved immediately and the local authority disputing nomination should write to the court detailing its request for the court to reconsider its nomination and send a copy to the legal adviser for the authority which it believes should be nominated.

The court shall notify the local authority legal department by email of any hearing at which the court is considering ordering the local authority to prepare a section 37 report along with any Safeguarding Letter prepared by Cafcass. The court will permit remote attendance at that hearing if the local authority gives notice of its intention to attend and in the alternative the local authority can send written representations.

The court will immediately serve on the local authority legal adviser to the Local Authority Children’s Services (and the allocated social worker where known) a copy of the court order and any other relevant documents.

The court should also consider, if it is known that there is information not to be shared between the parties, recording that on the face of the order.

If any parties to the proceedings are represented their legal representative will write to the legal advisor for Children’s Services informing them of:
the court direction
the concern that prompted a section 37 direction
the filing date for the report
the names of the child/children, their date of birth and home address
the name of any allocated social worker

The local authority must be mindful of the primary purpose of the report which is for the local authority to decide whether a care order or supervision order is required to safeguard the child. The report should contain the following:
the enquiries and interviews undertaken for the investigation
the documents obtained and read
family composition and summary background history
a summary of any social services involvement with the family
the identified harm the child has suffered and risks to the chid
an opinion as to whether these constitute significant harm and if so how this harm or risk of harm can be managed
the protective factors for the child
the welfare checklist
the local authority’s decision to either to apply or not apply for a care or supervision order
if the local authority decides not to apply it must set out what services, support and assistance should be provided to safeguard and promote the child’s welfare. The local authority will also set out whether it would be appropriate to review the case at a later date and if so when the review should take place
analysis and reasoning for its decision

When the court makes a direction for a section 37 report if the court is satisfied there are reasonable grounds to believe that the threshold criteria are met it can also make an interim care order or interim supervision order. The interim order can be made for a maximum of 8 weeks. If the court has made or is considering making an interim care order then the proceedings are “specified” and as such the court must appoint a Cafcass officer for the child unless satisfied it is not necessary to do so in order to safeguard the child.

If an interim care order is made then the child concerned becomes a “looked after child” and the local authority will owe all the duties it has to a looked after child including the appointment of an Independent Reviewing Officer. The placement of the child will be regulated by the Care Planning, Placement and Case Review (England) Regulations 2010. However, the local authority needs to bear in mind that the making of an interim care order does not necessarily mean the child should be removed from a parents care and the 2010 regulations do not require removal until an assessment of the suitability of the placement has concluded in accordance with those regulations.

If the local authority assesses that it is in the child’s best interest to be removed from its current carer under the interim care order then it must not take any steps to remove the child unless the child’s immediate welfare demands it. In other cases the local authority legal adviser will write to the court setting out the local authority plans and reasoning and the court will list the matter for an urgent hearing within 48 hours.

The court can order a fresh or addendum report is undertaken more than once in the same proceedings for the following reasons :-
The child’s circumstances have changed since the last report
The report has raised further issues which need investigating
the court has identified the report was deficient and requires further work

The local authority should file at court and serve a copy of the report on the parties where it has been provided with their details. If the local authority has not been able to serve the report on any party it must inform the court.

Wasted costs can be ordered against the local authority if the report is deficient and the areas of deficiency have not been addressed through addendum or oral reports or the filing of the report was delayed which caused the case to be adjourned or delayed.

The author of the report will attend any court hearings as directed by the court.

A section 37 direction is not restricted to a child who is subject to the proceedings but extends to any child in any family proceedings in which a question arises with respect to any child where it appears to the court that it may be appropriate for a care or supervision order be made with respect to him.