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Re Q (Child: Interim Care Order: Jurisdiction) [2019] EWHC 512 (Fam): The limits of orders under section 38 Children Act 1989

Chris Barnes, barrister, 4pb, and Mitali Zakaria, partner at ITN Solicitors, consider the case of Re Q (Child: Interim Care Order: Jurisdiction) [2019] EWHC 512 (Fam) where the Court was invited to interpret the scope of the jurisdiction to make interim orders under section 38 of the Children Act 1989. (The authors acted for Q’s father.)


Chris Barnes, barrister at 4PB and Mitali Zakaria, partner at ITN Solicitors

In the year of the 30th anniversary of the Children Act 1989 ('CA 1989') it is rare for questions of statutory interpretation to arise which have not, as yet, been determined. In the case of Re Q (Child: Interim Care Order: Jurisdiction) [2019] EWHC 512 (Fam) Knowles J was faced with just such a question. Whilst section 31(3) precludes the making of a care or supervision order, including interim orders, after a child's 17th birthday (or 16th if the child is married) does the Court have the jurisdiction to extend an interim order, made prior to a child's 17th birthday, to a date after that 17th birthday?

The issue arises, in large measure, as a consequence of the amendments to section 38 made by the Children and Families Act 2014 ('CAFA 2014') which came into force on 22nd April 2014. Prior to that amendment a local authority had been required to apply to renew an interim order after 8 weeks, and every 4 weeks following the first renewal. Even if such a power to continue an interim order after a child turned 17 the order could only last a short number of weeks.

As amended the relevant provision of section 38(4) provides that "an interim care order made under or by virtue of [section 38] shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on which ever of the following events first occurs – (c) in a case which falls within subsection [38(1)(a)], the disposal of the application".

The same question had been considered, though not with the benefit of full argument, by Williams J in Re A (Wardship: 17-Year Old: Section 20 Accommodation) [2018] EWHC 1121 (Fam)  who noted [at para 38]:

"In relation to care orders, of course, s.31(3) provides that no care order may be made with respect to a child who has reached the age of 17. Just for the sake of clarity, because an issue was raised but ultimately not pursued, the interim order that was made in September endured by operation of s.38(4) of the Children Act 1989 for such period as may be specified. S.38(4) provides that it would cease to have effect on the occurrence of certain events. The only event which applies in this case is s.38(4)(c) which is the disposal of the application. So the interim care order would endure until the disposal of the application, i.e. today. There is no provision for it to cease on the child reaching the age of 17."

In the course of determining the question Knowles J considered pre-legislative material in relation to both CA 1989 and CAFA 2014 whilst also undertaking a detailed review of the provisions of CA 1989. A number of factors weighed upon the Judge's decision:

a) Though not binding as it did not form part of the ratio of the case, the judgment of McFarlane LJ (as he then was) in Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 suggests that an interim care order would expire on a child's 17th birthday;

b) The recommendations of the Law Commission's 1988 review  in relation to the age restrictions on the making of orders were shaped by the decision in Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112 and a recognition of the developing autonomy as children grew older;

c) Section 20 recognises the autonomy of older children, especially subsection 11 which allows a child of 16 or older to consent to being accommodated over the objections of their parent(s);

d) Though an Emergency Protection Order can be made in respect of a 17-year old child such an Order cannot be renewed where a local authority is not, per section 45(4)(b) CA 1989, "entitled to apply for a care order with respect to a child";

e) The amendments to section 38 brought about by the CAFA 2014 had been made with the aim of reducing the administrative burden of renewing interim order and contained no express provision to extend the jurisdiction of the Family Court to make interim orders in relation to 17-year olds;

f) An interim order is not available as a free standing remedy (per Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10, paras 89 - 90) and is linked strictly to the adjournment of an application for a care or supervision order, per section 38(1)(a) CA 1989, and the continuation of an interim order after a child's 17th birthday led nowhere given the Court would have no jurisdiction to make a final order

The Judge's conclusions

Critically, Knowles J recognised "that Parliament chose in passing the Act to demarcate seventeen or sixteen (if married) as the age after which a child could not be placed in the care or supervision of a local authority without a full disposal of the case having been achieved. That was a recognition of the growing autonomy of the individual child". As a consequence, Knowles J concluded that "no interim care or supervision order will endure beyond the date of a child's seventeenth birthday or the date of a child's marriage if aged sixteen. To be clear, interim care and supervision orders made for a period during which the child turns either seventeen or gets married (if aged sixteen) are impermissible. If, prior to the 2014 amendments, interim public law orders were being made which extended beyond the child's seventeenth birthday, they should not have been given (a) the absence of an explicit power to continue such orders beyond a child's seventeenth birthday and (b) the age thresholds set out in the Act."

The Judge's conclusions require careful consideration and the decision, unless overturned, will have a number of important practical consequences:

a) No interim care order or interim supervision order can persist after a child's 17th birthday (or 16th birthday if married);

b) If, even before the 2014 amendments, courts were extending interim orders, albeit for a short period, beyond a child's 17th birthday they should not have done so as no such power ever existed;

c) It does not necessarily follow that proceeding must always conclude upon a child turning 17 but "careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child's welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application"; and

d) In the event that a child aged 17 (or married aged 16 or over) is presently placed in the care of a local authority or under the supervision of a local authority under an interim order that order is, in fact, ultra vires and cannot stand – in those circumstances it is submitted that local authorities must look towards the CA 1989's voluntary provisions under sections 17 and 20 to provide accommodation and/or support by agreement.

In the case of Q the interim care order in place at the time of the hearing was set to cease to have effect on the date she turned 17 however the Judge was not persuaded that proceedings should be discontinued immediately and reserved that question to a future hearing.

7th March 2019