Care and supervision orders pending appeal: CA 1989 s. 40
A court that dismisses or discharges a care/supervision order can make an interim order to last for the appeal period (which the appellate court may extend).
Where— a court dismisses an application for a care order; and at the time when the court dismisses the application, the child concerned is the subject of an interim care order, the court may make a care order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order. Where— a court dismisses an application for a care order, or an application for a supervision order; and at the time when the court dismisses the application, the child concerned is the subject of an interim supervision order, the court may make a supervision order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order. Where a court grants an application to discharge a care order or supervision order, it may order that— its decision is not to have effect; or the care order, or supervision order, is to continue to have effect but subject to such directions as the court sees fit to include in the order. An order made under this section shall only have effect for such period, not exceeding the appeal period, as may be specified in the order. Where— an appeal is made against any decision of a court under this section; or any application is made to the appellate court in connection with a proposed appeal against that decision, the appellate court may extend the period for which the order in question is to have effect, but not so as to extend it beyond the end of the appeal period. In this section “ the appeal period ” means— where an appeal is made against the decision in question, the period between the making of that decision and the determination of the appeal; and otherwise, the period during which an appeal may be made against the decision.
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
This section gives the court power to keep a care or supervision order in place while an appeal is pending, even after it has dismissed the application or discharged the original order.
If the court dismisses a care order application but the child is already under an interim care order, the court can make a full care order that takes effect immediately, subject to any directions it chooses. The same applies when dismissing a care or supervision order application if the child is under an interim supervision order – the court can make a supervision order instead.
When the court grants an application to discharge a care or supervision order, it can decide that the discharge does not take effect immediately, or that the order continues but with new directions. Any order made under this section lasts only for the period within which an appeal can be brought, or until the appeal is decided. The appeal court can extend that period if an appeal is made or proposed.
When it applies
- A court dismisses the local authority's application for a care order, but the child has been living under an interim care order; the court makes a care order to protect the child while the authority decides whether to appeal.
- The court dismisses a supervision order application when the child is subject to an interim supervision order; the court makes a supervision order until the appeal time runs out.
- The court discharges a care order at the request of the parents, but orders that the discharge does not take effect until the appeal period ends, so the child remains in care temporarily.
- After a care order is discharged, the court orders that the original care order continues with modified contact arrangements for the duration of the appeal period.
What this section does not say
- This section does not allow the court to make a care order from scratch when no interim order exists; that is covered by sections 31 and 38.
- It does not govern the length of interim care orders generally; those are dealt with under section 38 and its time limits.
- It does not apply to appeals against orders made under other parts of the Children Act, such as emergency protection orders (section 44) or child assessment orders (section 43).
- The section does not tell you what happens after the appeal period ends; the original decision (dismissal or discharge) then takes full effect unless extended.
Related sections
That's the law. Now let's settle your problem.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
Or open a session directly and invite the other party.
We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.
This page reproduces the text of CA 1989 s. 40 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.