England and Wales Court of Appeal (Civil Division) Decisions
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D (A Child) [1999] EWCA Civ 1390 (12 May 1999)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1390.html
Cite as:
[1999] 2 FLR 632,
[1999] Fam Law 615,
[2000] 1 FCR 436,
[1999] EWCA Civ 1390
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IN
THE SUPREME COURT OF JUDICATURE
1999/6020/2
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM LINCOLN COUNTY COURT
(HIS
HONOUR JUDGE R P V JENKINS
)
Royal
Courts of Justice
Strand
London
WC2
Wednesday
12th May 1999
B
e f o r e:
LORD
JUSTICE SIMON BROWN
LORD
JUSTICE AULD
LORD
JUSTICE THORPE
-
- - - - -
D
(A CHILD)
-
- - - - -
(Computer
Aided Transcript of the Stenograph Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
MR
J MUNBY QC and MR A PERKINS
(Instructed by the Legal Division, Lincolnshire County Council, County Offices,
Lincoln) appeared on behalf of Lincolnshire County Council
MISS
E SELMAN
(Instructed by Messrs Langleys, Silver Street, Lincoln) appeared on behalf of
the Mother
MR
S MASKREY QC and MR B ROACHE
(Instructed by Sills & Betteridge, 46 Silver Street, Lincoln) appeared on
behalf of the Litigation Friend
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
Wednesday
12th May 1999
JUDGMENT
LORD
JUSTICE THORPE: This appeal concerns a little boy, O, who is five months of
age. His mother is 23 years of age and his father is 37. The mother has had a
sad life. She sustained abuse as a child and at the age of 12 was seeking
solace in the sniffing of gas and the abuse of alcohol. She progressed into
abusing drugs and in 1990 was herself made a ward of court when pregnant. Her
firstborn, E, was delivered on 20th April 1991. At a very early stage the
mother decided that her son should be raised by her own mother and E, who is
now eight, remains in the care of his maternal grandmother.
The
father and mother met in 1994. Both of them were in varying degrees
drug-dependent and both of them were financing their dependency through
criminal activities, intermittently receiving sentences of imprisonment. The
mother's confinement with O came on 12th November 1998 and the local authority
immediately applied for a care order. An interim order was made in the family
proceedings court when O was only four days old. There has since been a series
of interim care orders, made first in the family proceedings court and more
recently in the county court. Under their control, O was discharged into his
mother's care at the maternal grandmother's home on 29th November 1998.
However, the mother's lifestyle continued to be chaotic and despite a written
agreement between the mother and the local authority, which was designed to
introduce some boundaries into her life, the local authority intervened on 12th
February 1999 to remove O from the mother's care. He has since been in the
care of foster parents.
The
guardian ad litem (now called a litigation friend) instructed an expert to
report on the parents. Her choice was a clinical psychologist, Mr Hopley, who
is part of the NHS Leicestershire mental health service team. His report on
the mother, dated 12th March, includes these opinions, and I quote from page 77
of the bundle:
"She
has, with the passage of time, found that the influence of drugs upon her
emotional state has assisted her not only to cope with the trauma of early
childhood sexual abuse, but also with other difficulties that she has
experienced in life."
Later
on the same page:
"I
do not believe that she will succeed in becoming totally abstinent from drugs
until these underlying emotional issues are addressed and believe the
adulterated urine sample that she provided is witness to this fact."
Mr
Hopley recommended that the mother should receive treatment at a single-sex
residential unit, particularly favouring one in London. However, the choice
moved towards a mixed-sex but more local resource in Sheffield called Phoenix
House, and on 17th April a statement in the proceedings was filed by Ann Brown,
who is the senior practitioner at the establishment. She said in relation to
the prospective admission of the mother:
"We
would also be providing therapeutic counselling with regard to drug use. I am
aware, however, that [the mother] has other difficulties. She has significant
emotional problems to do with her background and upbringing. I believe that
any work in this regard would be better carried out by a different counsellor
who could be brought in but who might be able to continue working with [the
mother] after she had left Phoenix House. I suspect that there could be
something of a conflict if the same counsellor tried to deal with these
problems as was dealing with the drug use."
The
local authority had viewed Phoenix House to determine whether it supported the
guardian's choice, and its reaction came with the third statement of Mr Larkin,
the social worker in the case, dated 21st April. He said, under the heading
"Conclusions":
"I
feel that the best way forward is to build on the positives already in [the
mother's] life. I understand that her solicitor has already made arrangements
for her to be considered for 'de-toxing' at Mapperley Hospital in Nottingham.
Once this is successfully completed, I recommend that she returns to her home
and with the support of the Social Services, [the] Children's Centre, [Ms J]
from the Women's Centre and the Lincoln Clinic, she takes care of [O].
Practical help and child protection advice can be offered by Social Services;
practical help, emotional support and social links by [the] Children's Centre;
emotional support and social links by the Women's Centre and relapse prevention
vis a vis her drug abuse by the Lincoln Clinic. This is a short-term strategy,
as the underlying causes of her drug abuse would not be therapeutically
addressed within this net of care."
It
is to be emphasised that all this evidence was prepared very close to a
directions appointment fixed for 22nd April before his Honour Judge Jenkins in
the Lincoln County Court. Thus Mr Larkin's statement was dated on the eve of
the hearing. It seems that the judge decided at a relatively early stage to
hear oral evidence and at the end of the first day he adjourned the hearing
over to the following Monday, 24th April.
On
that second day, there emerged a report from the Lincoln Clinic which had been
written on 20th April but, because it was addressed to the mother's GP, it did
not become available to the parties before the judge until the second day. The
report from the Lincoln Clinic was in negative terms. They commented on the
mother's poor commitment to attending appointments and concluded, following
general discussion with the team, that she could not be recommended for
detoxification at this date. However, we are told that the local authority
reacted in a very positive fashion by saying that they would nonetheless stand
by their offer of detoxification at Mapperley and, if that could not be funded
through the NHS because of the Lincoln Clinic's conclusion, they would
themselves fund it.
The
issue before the judge was clearly developed along the predictable line that
the crucial factual issue for his determination was whether the programme
proposed by the guardian ad litem was a programme of assessment or a programme
of therapy. That was obviously discernible as a crucial issue, given the
decisions in relation to the limits of the court's jurisdiction to order
interim management programmes in the face of opposition from local authorities
holding interim care orders. There can be no doubt at all that the statement
of Ann Brown was settled with that crucial issue to the fore and throughout the
statement she emphasises those aspects of the work at Phoenix House that could
legitimately be termed assessment and she uses the label "assessment" very
freely throughout her statement.
At
the end of the second day of evidence the judge delivered an extempore judgment
late in the evening, in which he sought to explain why he preferred the
evidence of Miss Brown and on the facts he reached the conclusion that what the
guardian ad litem proposed was indeed a programme of assessment and therefore a
programme which it was within his jurisdiction to impose. Accordingly, the
order that he drew said in paragraph 2:
"The
Lincolnshire county council shall undertake a six month residential assessment
of the mother . . . and the child at the Phoenix House Family Centre . . .
Sheffield"
and,
by the following paragraph, that this case should be set down for final hearing
before him on 6th March 2000 at the Lincoln Combined Court Centre.
Subsequently
it was arranged that the six-month residential assessment should commence on
12th May and the local authority with some urgency applied to this court for
leave to appeal, that leave having been refused by Judge Jenkins. The
application for leave came before the single judge on paper on 10th May and a
direction was given for an immediate hearing of the application, with appeal to
follow if leave granted, fixed for the following day, 11th May. Yesterday
leave was granted and the appeal proceeded.
Mr
Munby, for the local authority, advanced as his first contention that the judge
was in fact and in law wrong in concluding that the programme proposed was an
assessment within the meaning of
section 38(6) of the
Children Act 1989. The
programme was in essence a programme for detoxification and rehabilitation of
the mother and the judge accordingly had no power to order that programme. It
was agreed that that submission should be taken as a preliminary point to which
all parties would present their arguments since, obviously, if it succeeded,
there would be no need to address any of Mr Munby's other grounds.
In
support of that first ground, Mr Munby QC submitted shortly that the judgement
below did not properly apply the distinction defined by Holman J in the case of
Re
M (Residential Assessment Directions
[1998] 2 FLR 371 and the same distinction identified by this court in the case
of
Re
B (Psychiatric Therapy for Parents
[1999] 1 FLR 701. He submitted that a programme does not become an assessment
simply because a judge so labels it and that there were no justifiable features
of the programme that could lead the judge to that finding.
Mr
Maskrey QC for the litigation friend made a brave and persuasive submission
which came close to challenging the whole approach developed in the cases of
Re
M
and
Re
B
.
He would minimise the distinction between assessment and treatment, providing
that what was ordered was relevant to enable the judge to determine the final
application. He said that it was for the judge to decide if a care order is
appropriate. The judge had to consider the care plan. His role was
investigative and it was for him to decide what he needed to determine the
primary question. It was not for the local authority to control the material
available to him. He said that
section 38(6) must be so broadly construed.
The question, he said, must be: does the proposal advanced provide the judge
with information that would assist him in making his final decision? The
crucial questions should be: what is the purpose and what is the effect of the
order? He submitted that the assessment was not to be confined to an
assessment of present circumstances, as on one reading the authority of
Re
B
seemed to suggest. If that was the law, then he accepted that he would lose
this appeal. But he said that here, even if detoxification was not to be
classified as an assessment, it was a prelude to an assessment which would be
carried out in the same unit.
Miss
Selman for the mother, adopting Mr Maskrey's submissions, added that assessment
is the gathering and examination of information over time as to the parent's
capacity to parent. It assists the parents to recognise their problems. An
assessment must include an element of achieving change. That would not be the
primary function, it would be an ancillary function of the assessment.
In
reply, Mr Munby accepted that the judge had an investigative power and could
exercise it in order to gather information pertinent to the final determination
of the case, but only if the information was derived from an assessment.
I
turn then to consider what is the state of the law in relation to the issues
argued. The decision of the House of Lords in
Re
C (a minor) (Interim care order: residential assessment
[1997] AC 489 settled the debate as to the proper construction of
section
38(6). The speech of Lord Browne-Wilkinson established the context in which
the section has to be considered, namely that the interim care regime leads to
the making of the ultimate decision whether to grant a full care order. At
page 500G Lord Browne-Wilkinson said:
"Section
38(6) deals with the interaction between the powers of the local authority
entitled to make decisions as to the child's welfare in the interim and the
needs of the court to have access to the relevant information and assessments
so as to be able to make the ultimate decision. It must always be borne in
mind that in exercising its jurisdiction under
the Act, the court's function is
investigative and non-adversarial".
It
is, of course, from that passage that Mr Maskrey derives his submission.
Having
set out the two possible constructions, Lord Browne-Wilkinson opted for the
broad and purposive construction. He said at page 501G:
"I
therefore approach the sub-section on the basis that the court is to have such
powers to override the views of the local authority as are necessary to enable
the court to discharge properly its function of deciding whether or not to
accede to the local authority's application to take the child away from its
parents by obtaining a care order. To allow the local authority to decide what
evidence is to go before the court at the final hearing would be in many cases,
including the present, to allow the local authority by administrative decision
to pre-empt the court's judicial decision."
There
is no distinction drawn in this speech between assessment and treatment. That
distinction is one which family lawyers and judges have often drawn in
categorising conversations between adults and children who may have been the
victims of abuse. Is the purpose of the conversation investigative - that is
to say, to explore what has happened; or is its purpose therapeutic - that is
to say, to help the child to come to terms with past experience? So it may not
be surprising that specialist family judges in the cases of
Re
M
and
Re
B
have both independently set the same bounds on the judge's power under
section
38(6) to direct specific management in the interim leading up to a final
hearing. I say "independently" because
Re
M
was decided in March 1998 and not cited to this court in
Re
B
in July 1998. As to the decision in
Re
M
,
I of course endorse the boundary that Holman J sought to draw, although I would
not necessarily have drawn it, as he did, at the conclusion of the Cassel
Hospital's eight-week initial assessment. But the prerequisites that he
formulated may have the effect of distracting from what I believe to be the
crucial question, namely the question of jurisdiction. The first and third
prerequisites go to jurisdiction, emphasising the importance of the guidance on
the construction of
section 38(6) offered by Lord Browne-Wilkinson in
Re
C
;
the second and fourth prerequisites, however, go to the exercise of discretion,
assuming the jurisdiction exists. The second prerequisite rightly emphasises
that any direction must promote the best interests of the child, and the fourth
that no direction should place an unreasonable burden on the local authority.
So
it may be more helpful to judges to start with the root question, namely
whether the broad and purposive construction of
section 38(6) confers
jurisdiction to make the particular direction sought. Only if jurisdiction
exists do considerations relevant to the exercise of discretion arise.
The
bounds to the court's discretion are stated in
Re
B
.
I accepted that a programme may be an assessment within
section 38(6) even if
there is an ingredient of ancillary therapy, but I held that a programme which
is substantially therapeutic does not fall within
section 38(6) even if it
involves some element of assessment as it proceeds. Clearly the programme
under consideration in that case was not an assessment of the child but a
therapeutic programme designed to improve the adults' capacity to parent. The
judgement of Hobhouse LJ is to like effect but more fully and more strongly
expressed. Having reviewed the statutory framework, and having cited the
crucial passages from the speech of Lord Browne-Wilkinson in
Re
C
,
he said at 712G:
"These
citations with regard to the power under
s 38(6) demonstrate that there is a
line to be drawn and distinctions to be made. First, it is necessary to
distinguish between an examination or an assessment on the one hand and
something which is more properly described as treatment or therapy on the
other. The former comes within the scope of
s 38(6), but the latter does not.
Further, there is a distinction to be drawn between matters which involve the
child alone or the child/parent relationship on the one hand, and the parents
alone on the other side. The former comes within the scope of the subsection,
the latter does not. As Lord Browne-Wilkinson said, 'The interaction between
the child and his parents or other persons looking after him is an essential
element in making any assessment of the child'. It still has to be properly
described as an assessment of the child.
These
distinctions can be easily illustrated. For example, the difference between a
scheme for the medical treatment of a parent is clearly something which is not
within the scope of the subsection. A parent may need surgery, may need the
provision of prostheses, or may need, as was the fact in the present case,
psychiatric therapy. Those are not matters which fall within the province
without more of
s 38(6). They fall on the wrong side of the line.
It
is not an answer to say simply that once the surgery has been performed or the
psychiatric therapy has been given that one would be able to see and tell how
well the parent is performing at that stage. The substance of what has
happened in the administration of treatment or therapy is to change the
circumstances, not to assess the existing circumstances. Similarly, it is no
answer to say that surgery or therapy for the parent will help the child. That
is not the question which is raised by the exercise of the power itself. Nor
is it enough to say that once the therapy or surgery has been given then an
assessment will be made, or even that assessments will be made on the
effectiveness of the therapy whilst it is going on. If the substance of the
matter is therapy or treatment, then it is not something which the court is
entitled to order. If the substance of the matter is assessment under
controlled circumstances, then it does fall within the scope of the subsection."
Then
at 714C he continued:
"It
is relevant in a situation such as this to ask the question, 'What is it that
the local authority have been required to pay for?' If the answer that is
given is that they have been asked to pay for a course of therapy for the
parents, then that is something which does not properly come within the powers
of the court under
s 38(6). It is not open under that subsection for the court
to order therapy for the parents, let alone to order the local authority to
bear the cost of it.
In
my judgment this order went clearly beyond the scope of what was within the
power under the relevant subsection. I consider it is salutary that this case
has come before the Court of Appeal. One can see how easy it is to slide from
the situation which was recognised as being legitimate by Lord Browne-Wilkinson
in
Re
C
,
to a situation which is clearly on the wrong side of the line as is
demonstrated by the present case."
I
am in broad agreement with his formulation, although there is one sentence in
his illustrations of the essential distinction that has given rise to
considerable difficulty in this appeal. It is the sentence at 713B, "The
substance of what has happened in the administration of treatment or therapy is
to change the circumstances, not to assess the existing circumstances." In my
opinion that should not be read as a rule that excludes from the
section 38(6)
jurisdiction any programme that seeks or intends to change existing
circumstances. An assessment may well not have change for the better as its
goal. Classically the court may simply require a residential evaluation of
mother and baby attachment that the limited exposure of contact meetings does
not permit. But in the case of a teenage mother, ill-equipped for the
responsibilities of caring for a vulnerable new-born baby, one of the goals of
the residential assessment may be to improve her practical skills by teaching
and practice in a controlled environment. But even there the primary purpose
of the assessment is to evaluate her present capacity to accept help and
advice. The provision of that help and advice within the assessment period is
ancillary. So too the purpose of the residential assessment may be to assess
the parents' capacity to respond to treatment intending to resolve or diminish
emotional or psychological disorders currently disabling the parent from
achieving an adequate standard of parenting. During that period of assessment
psychotherapy may be offered, partly to assess the parents' capacity to enter
into a therapeutic relationship, but at the same time initiating the necessary
process of change. Again the primary purpose is to assess a present capacity,
the capacity to accept treatment, and the aim to initiate change for the better
is ancillary. As the case of
Re
M
demonstrates, if the assessment of the capacity to accept treatment results in
a positive conclusion, a subsequent treatment programme may well fall outside
the
section 38(6) jurisdiction since its primary purpose has switched from
assessment to treatment. Equally, there may be cases in which it is necessary
to conduct a residential assessment of a dysfunctional family. During the
residential assessment professionals will inevitably work towards improving the
family dynamics. But the primary purpose of the residential assessment remains
to test the capacity of the family to change and the delivery of professional
services in that interim remains an ancillary objective. It may be that in
individual cases the distinction will not be particularly easy to discern or
draw. Of course, any specialist responsible for a treatment programme
constantly reviews progress and at its conclusion evaluates outcome, but that
ingredient is ancillary and cannot be dressed as assessment because of its
existence as an inevitable ingredient of the treatment programme.
Applying
the distinction drawn in
Re
B
to this case, I am in no doubt that Mr Munby succeeds in his primary
submission. Looked at realistically, what the guardian proposed was a
treatment plan for the mother. It had two primary components, the treatment of
her underlying emotional and psychological disorder by a psychotherapist
independent of the specialist residential unit and the treatment of her drug
addiction by that unit. The mother's capacity to relate to her baby was not
substantially in question, although her care of O would be closely supervised
and assessed during her stay. It would in my judgment be quite unrealistic to
categorise the proposal as an assessment of O. Of course there are
distinctions between this case and the case of
Re
B
.
It can fairly be said that here the local authority accepted that the case had
not evolved sufficiently to enable a final decision to be made. Their proposal
involved detoxification followed by a supportive regime within the local
community. Mr Munby concedes that that proposal is equally not to be
categorised as an assessment of the child, but in the exercise of its powers
under the interim care order it is open to the local authority to volunteer
something that the court did not have the jurisdiction to order. Mr Maskrey's
submissions effectively demand the rejection of the distinction clearly drawn in
Re
B
and in my opinion cannot succeed in this court. If
section 38(6) confers
jurisdiction on the court to impose any regime on the local authority pending
and in preparation for the final hearing, the draftsman would not have confined
the power to "the medical or psychiatric examination or other assessment of the
child."
It
is of course stressed by Mr Maskrey and Miss Selman that the judge heard
evidence over the course of two full days and preferred the evidence of Miss
Brown to that of Mr Larkin. However, I must express some reservation as to
whether the issue required so much oral evidence. Ordinarily I would expect
the issue to be decided on the reports and on submissions. Be that as it may,
I am in no doubt that the judge reached the wrong conclusion on this factual
issue. First I doubt that he correctly directed himself as to the law. Both
his references to
Re
M
and
Re
B
at pages 4 and 6 reveal that he had understood that Holman J had ordered an
admission to the Cassel Hospital on the basis that it provided assessment and
that in
Re
B
this court refused an admission to the Cassel Hospital on the basis that it
provided therapy. Leaving aside that misunderstanding, perhaps more
significant is his failure both to refer to all the guidance offered by
Hobhouse LJ and to explain how the programme he imposed on the local authority
fell on the permissible side of the boundary. These doubts are reinforced by
his frequent references to either successful assessment or the failure of
assessment when in the context he can only have meant successful treatment or
the failure of treatment. For these reasons I would allow this appeal and
delete paragraphs 2 and 3 of his order. Alternative directions for final
hearing will have to be sought from the court below.
LORD
JUSTICE AULD: I agree that the appeal should be allowed for the reasons given
by my Lord. I add a few words. In
Re
C
Lord Browne-Wilkinson, with whom all their Lordships agreed, at pages 501 to
502 gave the following guidance as to the court's use of the power in
section
38(6) of the
Children Act 1989. It should be given a broad purposive
construction. Its purpose was to enable the court to obtain the information
necessary for its own decision. It could include a joint assessment of the
child and the parents, including their attitude and behaviour to the child. And
it is directed to providing the court with the material which, in its view, is
required to enable it to reach a proper decision at the final hearing of the
application for a full care order.
No
issue arose in that case as to the form of assessment needed. The question was
whether there should be residential assessment, as sought by the parents,
supported by the guardian ad litem and recommended by the local authority's
social workers, or a care order with a view to adoption, as sought by the local
authority.
It
is plain from Lord Browne-Wilkinson's guidance that the essential purpose of an
assessment order is investigative. It requires a determination of the facts
and an assessment of them as to their present and potential implications for
the future care of the child. It is to enable the court to determine within a
relatively short time-frame whether it should in due course make a full care
order and, if so, in what terms.
Depending
on the circumstances, such an investigation may call for an assessment of
matters just as they are. Often, perhaps more often, it may also call for an
assessment of what they might be with treatment and/or other help to parents
and/or the child.
If
it were confined to an assessment of existing matters, without considering the
possibility or lack of it for change that some short-term therapy might
demonstrate, it would defeat the clear purpose of the provision as described by
Lord Browne-Wilkinson. Where the court considers on the evidence before it
that therapy might result in a change for the better for the child, the
jurisdictional question is not whether the direction is for therapy or
assessment, nor even whether in its content, as distinct from its duration, it
is more one than the other. It is whether therapy in the short term may assist
in assessing whether further therapy may produce a relevant change for the
better, and thus be a useful guide to the court when considering the future of
the child at the full care stage.
LORD
JUSTICE SIMON BROWN: No direction can lawfully be given under
section 38(6) of
the
Children Act 1989 unless it be "with regard to the medical or psychiatric
examination or other assessment of the child" within the meaning of that phrase
expounded by the House of Lords in
Re
C (a minor) (Interim care order: residential assessment)
[1997] AC 489.
Unless,
therefore, the programme proposed in the judge's direction under appeal in this
case can properly be characterised as one for assessment there was no
jurisdiction to make it. It was rightly accepted that a programme for
assessment can encompass within it an element of therapy or treatment. If,
however, the programme is essentially one for treatment rather than one for
assessment it falls foul of the principle established by this court in
Re
B (Psychiatric Therapy for Parents)
[1999] 1 FLR 701 and must be held to be outside the court's powers to order. I
recognise, of course, that that principle will not always be easy to apply.
The antithesis between assessment on the one hand and therapy and treatment on
the other is at best an imperfect one. Essentially, however, as Thorpe LJ has
explained, the court will be concerned to determine what is the primary purpose
of the programme proposed and whether the element of therapy treatment can
properly be regarded as merely ancillary to it. I agree with my Lords that the
programme ordered here clearly falls outside the limits of any programme which
as a matter of fact and degree could properly be characterised as one primarily
designed for the purpose of assessment rather than treatment. The programme's
therapeutic component is altogether too prominent, its length altogether too
long. I too would allow this appeal, with the result proposed by Lord Justice
Thorpe.
ORDER:
Appeal allowed. Case remitted to Lincoln County Court for further directions.
Leave to appeal refused. Legal aid assessment of the costs of the litigation
friend and the mother.
(Order
not part of approved judgment)