Nope, say the Court of Appeal in a really interesting judgment delivered this week, in which my super colleague Olivia Pike argued and won the appeal. See E (Section 37 Direction, The Children Act 1989), [2025] EWCA Civ 470.

I’m glad this has been cleared up because we all know that every so often a judge makes an order under s37 about a child that isn’t the subject of the proceedings. Not that often, but often enough. The only wonder is that it hasn’t been appealed and clarified before now.

The wording of s37 is undoubtedly tempting for a judge with a legitimate concern about a child she has become aware of that is connected to the family that is before the court, but not actually a part of the case. A provision that appears to apply to ‘any child’ is an alluring solution to this problem.

To my knowledge these orders are made from time to time, and the scenario in the appeal isn’t an outlier – the court is often provided with information about other children in a household, who visit the home, or who are in connected households – whether as part of assessment or threshold evidence or otherwise.

I can think of a handful of times where I have encountered judges using s37 in a similar situation (more typically about an older, half or step-sibling or an unrelated child in the same household. I can think of one instance of a judge making an ICO at the same time as the direction, but in others only a direction for a report was made – on one occasion not so long ago a skeptical judge was persuaded to make such a direction based on arguments made by me on behalf of a very concerned guardian – sorry, judge. You were right, I was wrong!). I know that many lawyers and judges have – until now – thought that was permissible. And one can understand why they would reach for this when information crosses their desk that suggests a child is at risk and that there is no safeguarding in place.

From the judgment there were significant procedural fairness issues in the way the judge went about imposing the orders (neither the children concerned nor their parents were aware or represented, and no urgent return date hearing was listed), but leaving those procedural issues aside, the Guardian’s invitation was a reasonable one, and the judges’ response was a reasonable step in response – what else was he to do? Reasonable on a human level, but importantly wrong in law.

The boiled down explanation of why ‘any child’ doesn’t really mean ‘any child’ is that there has to be not only ‘a child’ but also a ‘question’ that arises ‘with respect to the welfare’ of that child. And that means a question that is up for grabs in the case, not a question that pops into the judge’s mind, incidentally – no matter how justified. The judgment is interesting for its an analysis of the FPR, as an aide to interpretation of the statute (yes, that’s a thing) and for it’s reminder that the Children Act has a range of built in safeguards against unwarranted intrusion by the state into the lives of families, and that it draws clear lines of responsibility between the court and the local authority. s37 is an exception to the general rule that public law orders are only to be made on the instigation of a LA, and s37 had to be interpreted narrowly – a s37 order and ISO without notice to the parents of the child concerned entirely bypassed the intended safeguards and cut across the scheme.

The Guardian was right, says the Court of Appeal, to raise her concerns – and the judge was understandably concerned too. But s37 was not available, and nor was the ISO that was made off the back of that direction.

The Court of Appeal suggested that the judge might have directed disclosure of information from the proceedings to the social work team responsible for the other children, but in any event, a guardian who is concerned that a local authority is missing something in respect of a connected non-subject child can make a referral under s47 Children Act 1989 – and needs no permission or direction from the court to do so, by virtue of FPR 12.73(1)(a)(viii) i.e. ‘to a professional acting in furtherance of the protection of children’. Had the judge made an order to that effect though, it might have prompted some liaison and emphasised the court’s concern.