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Children Act 1989, Section 38 — Interim Care and Supervision Orders

Jurisdiction: England & Wales · Citation: Children Act 1989 (c. 41), section 38 · Authoritative source: legislation.gov.uk — s.38

The statutory mechanism for interim care and supervision orders during adjourned proceedings or under a s.37 direction. PA-relevant because (a) urgent protective measures during proceedings on alienating-parent conduct are made under s.38, (b) the assessment-direction power in s.38(6)–(7B) is the gateway for ordering medical or psychiatric examination of an alienated child during proceedings, and © the 2014 amendments (per s.14 CFA 2014) restructured the duration regime.

Verbatim text (current consolidated)

38 Interim orders.

(1) Where—

(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b) the court gives a direction under section 37(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

(3) Where, in any proceedings on an application for a care order or supervision order, a court makes a child arrangements order with respect to the living arrangements of the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.

(3A) For the purposes of subsection (3), a child arrangements order is one made with respect to the living arrangements of the child concerned if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following—

(a) with whom the child is to live, and

(b) when the child is to live with any person.

(4) An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—

(a) [omitted by Children and Families Act 2014, s.14(4)(a)(i)]

(b) [omitted by Children and Families Act 2014, s.14(4)(a)(ii)]

© in a case which falls within subsection (1)(a), the disposal of the application;

(d) in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;

(da) in a case which falls within subsection (1)(b) and in which—

(i) no direction has been given under section 37(4), and

(ii) no application for a care order or supervision order has been made with respect to the child,

the expiry of the period of eight weeks beginning with the date on which the order is made;

(e) in a case which falls within subsection (1)(b) and in which—

(i) the court has given a direction under section 37(4), but

(ii) no application for a care order or supervision order has been made with respect to the child,

the expiry of the period fixed by that direction.

(5) [omitted by Children and Families Act 2014]

(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.

(7) A direction under subsection (6) may be to the effect that there is to be—

(a) no such examination or assessment; or

(b) no such examination or assessment unless the court directs otherwise.

(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—

(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b) the issues with which the examination or other assessment would assist the court,

© the questions which the examination or other assessment would enable the court to answer,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f) the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules.

(8) A direction under subsection (6) may be—

(a) given when the interim order is made or at any time while it is in force; and

(b) varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.

(9) Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.

(10) Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.

Why this matters for PA

  • s.38(2) "reasonable grounds" threshold is the lower interim threshold (vs. the full s.31(2) threshold for final orders) — enables protective intervention while the alienation pattern is being investigated.
  • s.38(6)–(7B) assessment direction is the principal vehicle for ordering psychological assessment of an alienated child during proceedings. The 2014 amendment (s.38(7A)–(7B)) imported the s.13 CFA 2014 "necessary to resolve justly" test into interim assessment directions — meaning psychiatric/medical assessment of a child in PA proceedings now requires the same gatekeeping as expert evidence generally.
  • s.38(6) — child's right to refuse — a child "of sufficient understanding" can refuse examination. In severe-alienation cases this becomes contested: is the refusal authentic, or is it the alienation pattern speaking? South Glamorgan CC v W and B [1993] 1 FLR 574 (Douglas Brown J) held the inherent jurisdiction can override the s.38(6) refusal in extreme cases.
  • s.38(10) — fairness review on duration — when a child has been removed under an interim order based on alleged alienation, the court must satisfy itself the targeted parent had a meaningful opportunity to oppose.
  • Linked closely to s.14 CFA 2014 — the 26-week deadline applies to the underlying care application, but interim orders under s.38 operate within that timetable, with the 8-week s.38(4)(da) limit for s.37-direction cases.

Sources & authoritative references

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