A section 37 report is a measure of last resort, which the judge was anxious to avoid in the case of F (family proceedings: section 37 investigation) [2006] 1FLR 1122, Sumner J – reported by Michael Segal

The facts

The parents of two boys, D aged nine and E aged seven, separated. The father took the boys to his brother’s home. The police were involved, and E was returned to the mother. Proceedings were commenced, and the father was ordered to return D to the mother, but D refused to return to her.

After several very acrimonious hearings, an interim residence order in respect of both boys was made in favour of the father, with contact to the mother. There were further hearings, at which the father was bitterly hostile towards the mother, alleging that she lost her temper and smacked the boys. The boys remained with the father. Contact between D and the mother ended. Contact between E and the mother continued for two years, and then ended. The National Youth Advocacy Service (NYAS) was invited to act as guardian for the boys. The NYAS applied to the court for a direction pursuant to s.37 of the Children Act 1989.

By s.37, ‘where it appears to the court that it may be appropriate for a care or supervision order to be made with respect to a child, the court may direct the local authority to undertake an investigation of the child’s circumstances, whereupon the local authority must consider whether it should apply for a care or supervision order, provide services or assistance for the child or his family, or take any other action with respect to the child. Where the local authority decides not to apply for a care or supervision order, it must inform the court of its reasons for so deciding.’

The mother supported the NYAS’s application. The father argued that there were no grounds for making a s.37 direction, no grounds for concern about the boys’ welfare, that the NYAS was telling lies, and that the threat to place the boys in care had begun to impact upon their health. On the basis that attack was the best form of defence, he criticised the mother and said that if, contrary to his first argument, there were grounds for concern about the boys’ welfare, then it was all her fault.

The boys were in fact very critical of the mother. E said that he hated her, and D described her as evil, but a doctor considered that the father had influenced them against her, and that they had suffered emotional harm. Moreover, the father had prevented professionals from seeing the boys, was unable to speak to them in any positive terms about the mother, and addressed the court repeatedly on the basis that they did not love her, were afraid of her, and that she was a liar who should have nothing to do with them. He adopted the clear posture that he alone knew what was best for them, and scorned the views of professionals which differed from his own.


The father’s attitude towards the mother, his refusal to let the boys be seen, their attitude towards her, in which he was complicit, all caused the boys emotional harm, which was likely to be significant. The court did not want to put them into care, but needed to know what they were thinking at first hand, whether they were in urgent need of therapy and, if so, how and where that could be done. They needed help. The father lacked insight and understanding, and might not cooperate any further. He had made it impossible for any proper assessment of the boys to be carried out. The court must therefore take such action as their welfare demanded. owever, the judge was relucant to order a s.37 report, and wanted to be satisfied that there was no alternative. He was prepared to give the father a last chance. If the court authorised a s.37 report, the obtaining of psychiatric reports would be inevitable but, if the father would permit a child psychiatrist to see the boys, assess their views, and consider their welfare generally, the court would not order a s.37 report. On the other hand, if the father were to frustrate this course, then there would have to be a s.37 report, which the judge was anxious to avoid.


A s.37 report is a measure of last resort. It should not be used simply to bluff, or put pressure on, recalcitrant parents. The Court of Appeal has said that a court should not order a local authority to conduct a s.37 investigation unless it appears that it might be appropriate to make a care or supervision order, and that in purely private law proceedings any investigation required should be conducted by other means. In fact, in private law proceedings, a less Draconian order may be made under s.7 of the Children Act 1989, which provides that the court may ask a local authority to report to the court on such matters relating to the child as may be required by the court.

In this case, however, there was in fact a real possibility that the boys might have suffered significant harm as the result of emotional abuse by one or both of the parents, with a corresponding possibility that a care or supervision order might be necessary.

Even so, the court leaned over backwards to avoid having to order a s.37 report which, in itself, might have alarmed or distressed the boys by making them think that they were going to be taken away from the parents.

 The law report does not indicate whether the father did permit a child psychiatrist to see the boys but, if he refused, the local authority might well have applied for a care or supervision order, with a view to removing the boys from the parents pending psychiatric reports and a full parenting assessment.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.