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Family Law

The leading authority on all aspects of family law

18 MAR 2014

View from the foot of the Tower: Renewals of section 38 orders

The Children and Families Act 2014 removes from the Children Act 1989 the old prohibition on an Interim Care Order or Interim Supervision Order being made for longer than 28 days (or a combination of the first two such orders adding up to 12 weeks).

In this article, I will briefly set out the new provisions, but then more importantly consider what this means in practice.

The new provisions

Under the new legislation, which will come into force on 22 April, the Court may make Interim Care Orders or Interim Supervision Orders for any period (unless the order arose of the court's own motion using the power under s 37(4) of the Children Act 1989, when the orders are limited to 8 weeks).

Rather than deleting s 38 and replacing it with a new version, the legislation is framed in the modern way, in which you need to sit with the old Act and the new Act side by side and devise your own translation; as though you were a duller minor character in a Dan Brown novel.

Section 14(4) Children and Families Act 2014:

In section 38 (interim care and supervision orders) -

(a) in subsection (4) (duration of interim order) omit -

(i) paragraph (a) (order may not last longer than 8 weeks), and

(ii) paragraph (b) (subsequent order generally may not last longer

than 4 weeks),

(b) in that subsection after paragraph (d) insert -

"(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;", and

(c) omit subsection (5) (interpretation of subsection (4)(b)).

As I am charitable and kind, I will do that exercise for you - the new provision of s 38 of the Children Act 1989 that relates to duration of interim care and supervision orders reads like this:

S 38(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 -

...

(c) 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.

All of which amounts to - the court may make an Interim Care Order or Interim Supervision Order that arise from an application by a local authority for such period as may be specified in the order.

This is probably a long overdue change. It is well known that the framers of the original Children Act 1989 envisaged that most care proceedings would be concluded within the 8 weeks of the first interim order and that exceptional cases might require one renewal.

In practice that didn't happen, and it was not uncommon to see 10 or more interim care orders being drawn up in a single case. Looking at the Cafcass statistics, showing 11,108 care cases in the year 2012-13, that amounts to a hundred thousand orders that are processed by the courts, that are then sent to each party, and each party copies that and sends it to their own client - that's getting on for a million pieces of paper that could be removed from the family justice system by the simple expedient of letting there be an Interim Care Order that lasts from when it is made until the final determination of the case.

Practical issues

At the time of writing, we don't have any guidance as to how this change should operate in practice - although the guidance on everything under the sun continues to be produced and it could emerge at any time.

There are three issues to contemplate (and in the absence of guidance, these probably fall to be decided by the individual Designated Family Judges in charge of each court).

(1) The period specified in the order

There are a few options:

(a) stick with the current 28-day approach  (some courts like a system whereby the case is looked at every 28 days);

(b) to make the order last ‘until final determination of the case';

(c) to make the order last until a fixed date, say 26 weeks after the order is made, by which time the case should be concluded; 

(d) to make the order last  until a fixed date  (say 26 weeks time) OR until final determination of the case, whichever is sooner;

(e) to make the order last until a fixed date (say 26 weeks time) OR until final determination of the case, whichever is later

Some of those options will require advocates at IRH/final hearing to remember to extend or discharge the Interim Care/Supervision Orders.

The reason one might want some form of date on the order, rather than simply ‘until final determination'  is that this leaves an order that on the face of it has no indication of whether it is still valid. For example, Interim Care Orders are produced as evidence of the local authority sharing parental responsibility for medical treatment or passport applications, and if the order simply says 'until final determination' it is difficult for any third party looking at the order to know if it is current or lapsed.

(2) Is there going to be a standard approach to the duration of the order? 

There is going to need to be clarity as to whether the court have an expectation that ICOs and ISOs will be one order taking the case up to final hearing, or whether the duration of orders is to be determined on a case by case basis with no fixed starting point in mind.

Is the court going to determine post 22 April, that ALL Interim Care Orders/Interim Supervision Orders will last 'until final determination of the case' or whatever formulation is settled on from the above list? There will obviously be some exceptional cases where that starting point won't apply  - where a short order is made pending a full contested hearing, or there is good reason for making the order only until a piece of evidence arrives or a particular hearing takes place.

OR are parties going to be invited to address the court on duration of the order in each case, with a bespoke duration being determined.

There are pros and cons to either approach and it may well be that the character of the individual local court and ‘how things are done here' comes into play when making that decision.

The substantial  logistical issue with the latter approach (deciding each case on an individual basis) is that you will end up with a variety of renewal approaches from case to case and the risk of renewals being missed increases significantly.

(3) Transitional arrangements

For the existing orders that are in place, will Courts decide to set aside a particular day , say 25 April, and consider each and every current ICO/ISO and extend them for whatever specified period the Court adopts?

Or renew each individual order as they expire?

Invite the views of the parties as to the duration of the order post 22 April, or give an indication that all orders will be renewed for the new specified period unless objections are received?

There is actually quite a bit of administrative work, albeit only done once, to determine how the existing orders that will be in place before 22 April get renewed, and for what period.  

It will be important for Local Authorities, Family Court liaison committees and DFJs to turn their attention to these issues prior to 22 April.

Exclusion requirements

It is also worth noting that the s 38A Exclusion Requirement provisions have always been tied to the duration of the Interim Care Order they are attached to.  Those s 38A orders aren't made all that often, but they can now be made until final hearing rather than for a period of 28 days.  

There is power to make the Exclusion Requirement of shorter duration than the ICO as a result of s 38A (4), but given that there is an ability to attach a power of arrest or the possibility of committal for contempt as a result of a breach, it probably becomes even more important that such orders have clarity about the expiration date of the order. 

Andrew Pack is a care lawyer at Brighton and Hove City Council and their in-house advocate. He has also represented parents in care proceedings.

He is the creator and author of the Suesspicious Minds child law blog, which deals with public law, private law, social work, serious case reviews and Court of Protection cases - www.suesspiciousminds.comAndrew can also be contacted via Twitter at @suesspiciousmin.

Andrew was shortlisted for the Family Law Commentator of the Year Award at the 2013 Family Law Awards.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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