Exclusion requirements in interim care CA 1989 s. 38A
Courts can add an exclusion requirement to an interim care order if another resident consents. It ends if the authority removes the child for over 24 hours.
Where— on being satisfied that there are reasonable grounds for believing that the circumstances with respect to a child are as mentioned in section 31(2)(a) and (b)(i), the court makes an interim care order with respect to a child, and the conditions mentioned in subsection (2) are satisfied, the court may include an exclusion requirement in the interim care order. The conditions are— that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and that another person living in the dwelling-house (whether a parent of the child or some other person)— is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and consents to the inclusion of the exclusion requirement. For the purposes of this section an exclusion requirement is any one or more of the following— a provision requiring the relevant person to leave a dwelling-house in which he is living with the child, a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated. The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order. Where the court makes an interim care order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement. Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement. Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order. Where a power of arrest is attached to an exclusion requirement of an interim care order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement. Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act. If, while an interim care order containing an exclusion requirement is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
When a court makes an interim care order for a child, it can include an exclusion requirement directed at a specific person living with the child. This requirement can order the person to leave the dwelling-house, prohibit them from entering it, or exclude them from a defined area surrounding the home. The court can only include this requirement if excluding the person reasonable cause shows the child will cease to suffer or be likely to suffer significant harm, and another resident in the home is able and willing to care for the child and consents to the order.
The court can attach a power of arrest to the exclusion requirement. If a power of arrest is attached, a police constable is authorized to arrest without a warrant anyone they reasonably believe is breaching the requirement.
An exclusion requirement or attached power of arrest may be set for a shorter period than the interim care order itself and extended upon application. If the local authority removes the child from the home to other accommodation for a continuous period of more than 24 hours, the exclusion requirement automatically ceases to have effect.
When it applies
- A local authority applies for an interim care order and seeks to exclude an alleged abuser from the home while the other parent remains to care for the child.
- A court attaches a power of arrest to an exclusion order prohibiting a named individual from entering a defined area surrounding the child's residence.
- A police constable arrests an individual without a warrant after finding them inside a home in breach of an active exclusion requirement attached to an interim care order.
- An exclusion requirement automatically lapses because the local authority has placed the child in temporary foster care away from the residence for more than 24 hours.
What this section does not say
- Exclusion requirements in emergency protection orders, which are governed by ca1989s.44a.
- Voluntary court undertakings given by a party in place of an exclusion requirement, which are governed by ca1989s.38b.
- Final non-molestation or occupation orders made under the Family Law Act 1996 outside the context of interim care orders.
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This page reproduces the text of CA 1989 s. 38A in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.