Neutral Citation no. [2001] NIFam 30	Ref:     	HIGF3205	
			
Judgment: approved by the Court for handing down	Delivered:	23/10/2001	
(subject to editorial corrections)*			

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION
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A1/2000/OCP

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BETWEEN:

HOMEFIRST COMMUNITY HEALTH AND SOCIAL SERVICES TRUST

Applicant;

- and -

EH

Respondent.

________

HIGGINS J

	This is an appeal from that part of an order made by His Honour Judge Markey QC on 22 February 2000 whereby he gave a direction under Article 57(6) of the Children (Northern Ireland) Order 1995.  The direction given was in the following terms -
		“The Trust is to carry out the assessment component of the psychotherapy in order to see whether the mother is capable of sufficient commitment as appears from the judgment”.
		
	The judgment referred to is the judgment of His Honour Judge Markey QC delivered on 22 February 2000 in an application under Article 50 of the Children (Northern Ireland) Order 1995 by the Homefirst Community Health & Social Services Trust (the appellants) (the Trust) for a care order in respect of AH, the daughter of EH (the Respondent) who was born in 1996.  AH is the fourth child of EH, none of whom are in her care.  The Trust applied for a care order on 9 June 1999 due to the mother’s poor mental state and parenting ability.  Since her birth, AH had been accommodated by the Trust with her mother’s agreement on four separate occasions.  Eventually the Trust sought the care order referred to.  In his judgment Judge Markey QC held that the evidence presented satisfied the “threshold criteria" set out in Article 50 of the Children Order, that is the child had suffered or was likely to suffer significant harm and that such harm was attributable to the care given to the child by the parent, EH.  However the Judge declined to make a care order.  Instead he made a further interim care order under Article 57(6) for 4 weeks and gave the direction under Article 57(6) referred to above.
	Article 57(6) of the Children (Northern Ireland) Order 1995 states:
		"Where the court makes an interim care order or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.”
		
	The grounds of appeal are:-

“1.	The programme of schema-focused cognitive psychotherapy proposed by Dr Pollock is entirely or in the alternative primarily for treatment of the Respondent’s personality sub straight and symptoms.  The programme has the aim of changing the mother’s circumstances and is not one of assessment.

2.	The ‘assessment component’ of the psychotherapy is merely a part of an overall programme of treatment. It is not and was not intended by Dr Pollock to be a free standing or separate component.  The component is referred to by Dr Pollock ‘her motivation to change should be assessed during the first 8 sessions of therapy’.  The component is viewed as part of the therapy not as an assessment in its own right.

3.	The ‘assessment component’ is not designed or related to ascertainment of ‘the true strength of the attachment relation and in particular the quality and depth of the mother’s commitment to the child’.

4.	The ‘assessment component’ is not designed or related to the mother child relationship.

5.	The delivery of the professional services in the form of schema-focused cognitive psychotherapy is the principle and not the ancillary objective of the Courts Order.”

	The history of relevant events is set out in the judgment of Judge Markey QC.  Significantly, at times the mother has felt unable to cope, has threatened self harm on a number of occasions and has had admissions to Holywell Hospital.  The incident on 29 November 1999 was particularly alarming.  The mother has also been the subject of abuse in her relationships with men.  The Trust’s plan for the future of AH was adoption.  Judge Markey QC referred in his judgment to the evidence of two psychiatrists and one psychologist in these terms:
		“Dr Lynch Consultant Psychiatrist said that, in relation to the mother the diagnosis of adjustment disorder (ie reactive depression) had been made as her mood varied with circumstances in her life.  A diagnosis of impulsive personality disorder had been made at another time, where impulsivity is a pervasive trait or characteristic which is not amenable to treatment.  Her threshold in relation to adverse life events was quite low.  In his opinion there had been no real improvement in her functioning since the abusive relationship ceased.  He considered that for a prolonged period the lapses in her mental state were likely.
		
		….
		
		Dr McEwen’s conclusion was that the nature of the attachment between A and her mother was strong and positive, and that A regarded her mother as the preferred carer, while accepting that there were others who could attend to her needs and give her protection.”
		
Doctor McEwen also commented -

		“He could not say with confidence that the mother could avoid further emotional difficulties.  For that reason he could not recommend that A should simply return to her mother's care.  The mother needs to reach agreement with trusted professionals as to whether good circumstances can be created for producing emotional stability, or whether this is likely to elude her for the foreseeable future.  The mother needs to know where she is in relation to care arrangements for her child.  She will have to take steps to satisfy the court that she is responsible within the context of an agreed and predictable pattern of contact with her daughter.  It would need to be ascertained how good a measure of agreement could be reached between the parental figures.  He did not find her to be suffering from major depressive illness but accepted that she would be liable to feeling depressed, frustrated or hopeless if her circumstances did not become more secure and positive.  In his view contact should take place at least once per month, provided there was no undermining of the placement.  He thought that the “snatching” episode at the school occurred because of the mother’s sense that all her fluctuations in mood would make care of the child difficult at home.  The mother was realistic about this and therefore there had been progress.  If cognitive therapy was successful he would agree that there was a possibility of return.  However he considered that A’s needs had to be considered separately and one should not be dependant on the other.  If return were to become possible there would need to be a guarded testing out of the process.  From the evidence of attachment he considered that there must have been an element of good quality care given by the mother to the child when they were living together.”
		
	For the purposes of this appeal emphasis was placed on the sentence - “she will have to take steps to satisfy the court that she is responsible within the context of an agreed and predictable pattern of contact with her daughter”.
	At page 12 of his judgment Judge Markey QC referred to the evidence of Dr P Pollock, a Clinical Psychologist:
		“Doctor Pollock, Clinical Psychologist said that in his view the mother’s difficulties in sustaining a caring role was most probably a reflection of her mental health problems and a lack of coping resources.  Her portrayal of A was warm and positive.  There were no indications that she was not capable of providing adequate care.  She did not seem to grasp the effect on A of repeated moves.  In order that it might be possible for the child to be returned to her she would require professional help to improve her coping skill and impulsivity when meeting stress.  She would also require help in dealing with her symptoms of post traumatic stress and the residual effect of violent and abusive experience.  This form of help is paramount to avoid the continuing pattern of moving A to alternative care.  Professional intervention was imperative to bolster her tolerance of stress and coping.”
		
	It appears that the Guardian ad Litem enquired from Dr Pollock what his proposal was and the Judge set out Dr Pollock’s explanation in these terms -
		“He explained that schema-focused cognitive psychotherapy was a time limited, structured and problem-targeted form of individual therapy conducted on a once or twice weekly session basis.  It addressed cognitive `schemata’ which are enduring systems of beliefs and assumptions about one’s self, relationships and events in the patient’s world.  These schemata form the basis of an individual’s personality functioning.  When an individual has experienced adversity or trauma these events produce schemata which are maladaptive and dictate his/her experiences of distressing psychological symptoms (eg anxiety, mood disorders, etc).  Treatment follows standard cognitive therapy protocols for addressing symptoms but also change at a deeper, schematic level.  Therefore schema-focused cognitive therapy targets the individual’s personality substrate as well as symptoms.  This therapy is typically effective for personality difficulties, and initial changes can be achieved within three to six months.  It is explicit in the methods used to explain the individual’s problems and it requires a collaborative involvement by both client and therapist.  In his opinion such therapy was appropriate for the mother because (a) she did not suffer from a severe personality disorder which was not amenable to psychotherapy.  In his opinion her pattern of behaviour emanated from the traumatic violence she had experienced, her impulsivity and extreme reactions to stressful circumstances.  Breaking that pattern was achievable through schema-focused cognitive therapy which was focused on the change of unhelpful, harmful and repetitive patterns.  (b)  Her level of intellectual functioning in that it is concrete, simplistic and easily understandable.  (c)  Women who had experienced domestic violence tended to develop maladaptive schema which affect their personality.  The mother’s case fits well within this category.  (d)  Her motivation to change could be assessed during the first eight sessions of therapy.  There was no guarantee that any form of psychotherapy would be effective and predictions about probable efficacy must be guarded until therapy is actually commenced and changes observed.”

	So far as the duration of this therapy was concerned Dr Pollock’s evidence was -
		“It would be possible to assess the level of the mother’s commitment to change in four to eight sessions.  After three or four months a valuation of treatment gains and benefits could be made, if twice weekly sessions were held; and in six to eight months for weekly sessions.  Changes would be evident on standardised psychometric measures of her difficulties following therapy.”
		
The Guardian ad Litem made the following points inter alia to the Judge -
		“1.	The mother’s capacity to meet the child’s physical needs was not in question when she was well and she had no significant anti-social habits such as alcohol or drug abuse;
		
		2.	The mother had a clear history of mental health problems.  Dr Lynch and Dr Pollock perceived a relationship between these and her experience of significant domestic violence over a sustained period;
		
		….

		4.	Dr Pollock was of the view that the mother might be helped by “schema focused cognitherapy” from a clinical psychologist.  It may or may not be enough to enable the mother to provide consistent care for the child.  It was in effect an avenue which had not been explored;”

and recommended that an interim care order should be made to secure A’s placement at present if the court viewed the proposed work with the mother as appropriate ie Dr Pollock’s proposal.
	His Honour Judge Markey then stated correctly the relevant law and went on to set out his conclusions and I refer to the relevant ones -
		“1.	It is clear that the mother was incapable of caring properly for the child when the Trust began to look after her and placed her with foster parents and that this remained the position when the proceedings were brought.  On this basis I am satisfied that the conditions of Article 50 were fully satisfied at the relevant time.
		
		2.	In my judgment it is also clearly established on the evidence that the mother has not, at present, the capacity to provide adequate care for the child because of her fragile psychological state and personality.
		
		….
		
		4.	In my opinion the Courts, and social agencies, must do more than pay lip service to the plight of women (and children) who are the victims of `domestic’ violence at the hands of abusive co-habitants.  We should, at least, make allowance for the affect of such abuse when it is shown to have impaired the mother’s capacity to rear her child, provided that can be done without increasing the risks to the child.  I will have regard to this consideration in my overall assessment of the case.
		
		5.	In my judgment it is a striking feature of this case that there is a very strong bond or attachment between the child and her mother.
		
		6.	If the mother shows that she is full committed to changing her approach and engages fully in the cognitive therapy to enable her to do so, so that she can commit herself without reservation to giving proper care to the child, there would be the prospect of future rehabilitation.  That depends on the mother and whether she can become strong and resolute enough to open a new chapter as a completely reliable carer for her child.  I emphasise that this change must be demonstrated in a timescale which meets the needs of the child.  Unless there is very good evidence of that change, and the risk of another failed return of the child can be assessed as very small, there could be no question of returning the child to the mother’s care.  Another breakdown in placement would do great emotional harm to the child.  The mother must recognise that inescapable fact.”
		
	During the course of the hearing before Judge Markey QC it had been submitted by Miss Smyth BL on behalf of the Trust that Dr Pollock’s proposal was one which lay outside the court’s jurisdiction under Article 57(6) of the Children Order as it was not an assessment of the child AH.  The learned County Court Judge then stated that whether “a proposed course should be classified as an assessment within the Article, or as therapy for the parent, is a matter of fact and degree”.  He then referred to a number of cases to which I will make reference later in this judgment and stated:
		“It is possible for a programme which goes beyond an assessment of the existing circumstances, and which has as a subsidiary purpose the aim of changing those circumstances, to fall within the Court’s jurisdiction under Section 38(6) [Article 57(6)] notwithstanding the comments of Hobhouse LJ.  Provided the primary purpose of a programme is to assess a present capacity, which could include the capacity to change over time or the capacity to accept treatment, the court has jurisdiction to impose the programme on the local authority under the sub-section even though the programme may include a large element of therapy and the ancillary aim of initiating change for the better.”
		
He then quoted remarks by Auld LJ in Re: D 1999 2 FLR 632 and continued - 
		“In my judgment, as a matter of fact and degree, the proposal in the present case falls within the purposive construction of Article 57(6).  The purpose of cognitive therapy - at least in its initial stage in assessing motivation and engagement - is to see whether the mother’s commitment is strong enough so that she is likely to be able to change sufficiently, and in a relatively short time, and so that she could realistically be considered as the carer of her child, and realise or embody the strong attachment which exists between the child and her mother.  I consider that the Court requires the information which that step would provide before it could properly decide whether to rule in or rule out the prospect of rehabilitation.  I therefore hold that the proposal comes within the scope of the Article.”
		
	Judge Markey was satisfied that the threshold conditions for the making of a care order were met but postponed the decision (what he referred to as ‘the welfare stage’) whether or not, in the light of the care plan and the other circumstances, to make a care order until the “assessment phase of the cognitive therapy has been carried out”.  He described the purpose of the adjournment to ascertain “whether there is a real and substantial chance that the mother has the capacity to engage in a process to change and overcome the deficits which have prevented her from being a reliable parent for her child”.  Like the Guardian ad Litem, he was not persuaded that the mother had been fully tested and found wanting.  He considered it was vital to ascertain the true strength of the attachment relationship and the quality and depth of the mother’s commitment to the child.  He then said:
		“Has the mother got, or may she soon acquire the capacity to overcome her psychological frailties, so that she had a real chance of becoming the reliable primary carer for her child; or are her problems so deep-rooted that this prospect must be ruled out?  I consider that this question requires to be assessed, and that assessment of her capacity to change is an essential component in getting the answer.
		
		In my opinion it would be pedantic or mechanistic, not purposive, to say that the mother-child relationship is not being assessed because the child is not present when one aspect of the relationship is being assessed.  In assessing a relationship the commitment of both parties must be examined.  I consider that the separate assessment (when this may be the best or only method available) of the parental pole of the relationship does not mean that the strength of the whole relationship between child and parent is not also being assessed.  It does not mean that the child is not integral to or participating in the process because the steps in the process are not all carried out at the same time and place, but sequentially.  I think that to hold otherwise would verge on the absurd and treat form as more important than substance.”
		
	Thus His Honour Judge Markey QC considered that the mother would benefit from the `schema focused cognitherapy’ proposed by Dr Pollock.  The primary purpose of the therapy was to break the mother’s pattern of behaviour namely her impulsive and extreme reactions to stressful circumstances.  During the first 8 sessions her motivation to change could be assessed.  This would be, in the words of Judge Markey QC to “see whether the mother’s commitment is strong enough so that she is likely to be able to change sufficiently” so that she might be considered realistically as a potential carer of her daughter.  This would take 3-4 months.  Thus Judge Markey QC concluded that “provided the primary purpose of a programme is to assess a present capacity which could include the capacity to change over time or the capacity to accept treatment” it fell within Article 57(6) and the court could impose that programme on the Trust event though the programme contained a large element of therapy.  If successful it left open the possible rehabilitation of AH with her mother.  The net issue in this appeal is whether the programme directed by Judge Markey fell within Article 57(6).  It was contended on behalf of the Trust that such a programme of therapy for the mother alone lay outside the court’s powers under Article 57(6).  
	The equivalent provision to Article 57(6) in England & Wales is section 38(6) of the Children Act 1989.  This has been considered in one appeal to the House of Lords, two Court of Appeal cases and one reported decision at first instance, all in differing factual circumstances.  I will consider them in chronological order.
	In Re: C (Interim Care Order: Residential Assessment) 1997 1 FLR 1, the House of Lords upheld the judge’s direction under section 38(6) of the Children Act 1989 that an assessment involving both the child and his parents take place at a specified venue.  The local authority took the view that rehabilitation of the child with his parents would expose the child to an unacceptable risk and was not prepared to pay for the residential assessment.  The section 38(6) direction in that case was very different from the direction given in the present appeal.  
	In Re: C the House of Lords considered the principles applicable to assessments under section 38(6) (Article 57(6)).  They rejected a narrow interpretation of the section which had been adopted by the Court of Appeal in an earlier decision (Re: M (1996) 2 FLR 646) in favour of a broader and more purposive interpretation. Significantly it was held that such assessments were not limited to cases in which the child only was to be assessed but extended to cases in which the parent-child relationship was to be assessed.  Lord Browne-Wilkinson said at p8 -
		“But it is impossible to assess a young child divorced from his environment.  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.”
		
	The next case was Re:  M (Residential Assessment Directions) [1998] 2 FLR 371, a decision of Holman J at first instance.  A residential assessment of a child G and her mother was proposed at the Cassel Hospital, Richmond.  This was supported by the Guardian ad Litem but opposed by the local authority.  It was held, applying Re: C supra, that the court had power to direct a residential assessment of a child and its mother.  The headnote continues -
		“Such a direction should only be made if: (i) the process was truly an assessment rather than a form of treatment, and the child’s participation was an integral part, (ii) the assessment was not contrary to the best interests of the child, taking a wide and long-term view of those interests, (iii) the assessment was `necessary’ to enable the court properly to discharge its function of deciding whether or not to make a care order and was directed to providing the court with material which in its view it `required’ to enable it to reach a proper decision and, (iv) it was not unreasonable to require the local authority to be involved with and to fund the assessment.  If these prerequisites were all fulfilled, the court then had to exercise an overall discretion as to whether it was `appropriate’ to give the direction.”
		
At page 381 Holman J said -
		“I, of course, loyally and, as a family lawyer, gladly accept the broad and purposive construction of s 38(6) adopted by the House of Lords.  But it does seem to me that both the words of the section and the language of Lord Browne-Wilkinson nevertheless impose some limits on the extent of the court’s powers.  They are limited to a process that can properly be characterised as `assessment’ rather than `treatment’, although no doubt all treatment is accompanied by a continuing process of assessment.  And they are limited to a process which bona fide involves the participation of the child as an integral part of what is being assessed.”
		
	And at page 383 -
	
		“I am satisfied that a direction for an initial assessment of the mother and G at the Cassel Hospital does fall within the power under s38(6).  Although the primary focus of the assessment and, indeed, of the later treatment is the psychological problems of the mother, the catalyst for change is the mother’s desire to resume caring for G.  How the mother relates to G and how she reacts to time spent caring for G again at the Cassel is central to the assessment.  It would genuinely `involve the participation of the child’ and this remains so even although it is not proposed that G would be present or involved during the first 2 weeks.  Section 38(6), as construed by the House of Lords, cannot require that the child is personally present at every moment of the assessment or at the outset of the assessment if it is first necessary to establish whether it even gets off the ground before the child begins to participate.
		
		However, it is clear in my view that after about 8 weeks the Cassel programme clearly changes from an assessment to a treatment phase.  As I have already said in his letter of 17 November 1997 Dr Kennedy clearly distinguishes between `the assessment phase’ and `the course of intensive treatment’.
		
		In my judgment I have no power now to direct an assessment for longer than, on the facts and evidence in this case, 8 weeks.  I accept the possibility that at the end of 8 weeks a genuine case may exist for a further short period which could genuinely be characterised as further `assessment’.  But at some point assessment necessarily merges into treatment and at that point the power of the court ends.”
		
	Thus Holman J drew a clear distinction between assessment (of child and mother) which he could direct and treatment of the mother which he could not.
	In Re: B (Psychiatry Therapy for Parents) [1999] 1 FLR 701, the judge at first instance directed a programme of therapy for the parents with a view to improving their prospects of providing good enough parenting.  The programme was to extend over a 12 month period, during the first 3 months of which the parents would undergo therapy and have only regular supervised contact with the child.  This was to be followed by a period during which the child would have been rehabilitated.  Throughout this period (and contrary to the intention of the legislation) there would be a series of interim care orders.  In his judgment reversing the judge below, Thorpe LJ said at page 707 -
		“The essential task in each case is to apply the principles stated in the speech of Lord Browne-Wilkinson to the facts of the particular case.  On which side of the boundary does the individual proposal lie?  Is it, in reality, assessment which the court has jurisdiction to order, or is it, in reality, something else?”
		
	and

		“Essentially Dr Baker was offering a treatment programme that would address the parents’ disabilities rather than a programme to assess anything in relation to the child, even taking the child in the wider context of `the child within the family’.”
		
	At page 712/713 Hobhouse LJ said -
	
		“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.”
	In Re: D (Jurisdiction:  Programme of Assessment or Therapy) [1999] 2 FLR 632, the Guardian ad Litem proposed a programme of treatment for the mother at a residential unit which was to include supervision and assessment of the mother’s care of the child but which focused on her emotional problems and drug addiction.  The judge at first instance ruled that the programme was one of assessment and fell within the wording of section 38(6).  The local authority appealed.  The Court of Appeal held that the primary aim of the programme was undoubtedly treatment for the mother, not assessment of her parenting abilities about which there was no dispute and the court had no jurisdiction to impose such a programme on the authority.  
	It is instructive to consider the arguments which were addressed to the Court of Appeal and which were summarised by Thorpe LJ at page 635 -
		“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 s 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 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.”
		
	Thorpe LJ then went on to consider the state of the law relating to the ambit of section 38(6).  He noted that Lord Browne-Wilkinson drew no distinction between assessment and treatment in his speech in the House of Lords.  Of course that was not the issue in that appeal.  The distinction is one familiar to family lawyers and judges.  Thorpe LJ then recounted how specialist family judges in Re: M supra and Re: B supra independently set the limits on the court’s power under section 38(6).  (Re: M was decided in March 1998 but not cited in Re: B which was heard in July 1998.)  Thorpe LJ endorsed the boundary set by Holman J in Re: M though in that case he would not have set the boundary at the same point in time.  He then said at page 637 -
“The bounds to the court’s discretion are stated in Re: B.  I accepted that a programme may be an assessment within s 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 s 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.”

	He then quoted with approval parts of the judgment of Hobhouse LJ in Re: B and then said -
		“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 s 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 s 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 these views to what the Guardian ad Litem proposed in Re: D Thorpe LJ found it to be treatment for the mother which had two primary components - treatment of her psychological disorder by a psychotherapist independent of the specialist residential unit and the treatment of her drug addiction by that specialist unit.  Her capacity to care for the child was not substantially in question though it was to be supervised and assessed during her stay in the unit.
	It is clear from these judgments that the distinction between a programme which is treatment and one which is assessment may be a fine one indeed and difficult to evaluate.  Mr Toner QC who with Miss Smyth appeared on behalf of the appellant Trust analysed the 4 cases referred to above.  He submitted that Dr Pollock's proposed programme was clearly treatment.  Article 57(6) refers to assessment of the child.  What Dr Pollock proposed was a programme for the mother alone in the absence of the child and the court could not direct such a programme for or assessment of the mother alone.  He submitted that the proposed programme contained no element involving assessment of the child/parent relationship and that the child was nowhere involved.  He pointed to the decision in Re: D in which it was not argued that the programme for detoxification of the mother fell within section 38(6).  He submitted that at least the child must be engaged or involved in the programme at some stage.  What the judge concluded was that if a programme might lead to rehabilitation it involved the child and if it was an assessment of some kind which might lead to rehabilitation then it was within the jurisdiction of the court under Article 57(6).  If the primary purpose of the programme directed by the Judge was therapy then it was outwith Article 57(6).  If the primary purpose was an assessment of the mother it might fall within Article 57(6) if it involved the child.
	Mr Long QC who appeared with Miss Gregan on behalf of the mother did not dispute Mr Toner’s analysis of the law.  He agreed that if the programme amounted to therapy then it was outwith the jurisdiction of the learned County Court Judge. Mr Long QC submitted that the court had to look at what Dr Pollock advocated and to determine whether or not a proper assessment could be extrapolated from it.  The learned County Court Judge was satisfied that what was proposed contained a component which could be identified as an assessment and accordingly he directed it should take place.
	Mrs McGaughey who appeared on behalf of the Guardian Ad Litem was in substantial agreement with the analysis of the law.  She submitted that the care plan put forwarded by the Trust ruled out any question of rehabilitation of the child with the mother.  Dr McEwen, the child psychiatrist, had identified a clear and strong attachment between mother and child.  It was crucial for the final decision on the care order application that the Judge was aware of the true nature and strength of the relationship between the child and her mother and the programme director might thereby alter the care plan put forward and/or influence and inform the Judge in the decision he would have to make.
	It is essential to look at Dr Pollock’s proposal and what it entailed.  He concluded that the mother required professional help to improve how she coped with stress and to reduce her tendency to react impulsively and to deal with her symptoms of post traumatic stress and the residual effect of violent and abusive experiences.  The form of that help was individual therapy.  The therapy would last at least 6-8 months if it occurred once weekly and at least 3-4 months if twice weekly.  At the end of whichever periods was appropriate the treatment would be evaluated.  However, during the first 4-8 sessions of therapy her motivation to change her impulsive reaction to stress would be assessed.  In other words she was on trial to see if she would make the effort required.  
	At no time was the programme to involve the child attendance.  The mother has a good relationship with AH and her ability to provide appropriate parenting and care is not doubted.  Thus there is nothing wrong with the child nor is it demonstrated that there is anything wrong with the parent/child relationship.  The problem lies with the mother and if there is no change in her situation the prospect of rehabilitation is negligible.
	His Honour Judge Markey QC concluded that the mother should be given the opportunity to undergo the therapy proposed by Dr Pollock and in effect to prove herself.  He put it this way - if she shows she is fully committed to changing her approach and engages in the therapy to enable her to change that approach, there would be a prospect of rehabilitation with her daughter.  He acknowledged that there was an issue as to whether this was therapy or assessment but stated the distinction was one of fact and degree.  He then mentioned that the strongest statement on the dichotomy (between therapy and assessment) was made by Hobhouse LJ and quoted the passage to which I have referred.  He then said that this statement had been modified by the Court of Appeal in Re: D and concluded that the current law is as stated in the headnote to Re: D as quoted in the Family Law Reports.  He then said:
“It is possible for a programme which goes beyond an assessment of the existing circumstances, and which has as a subsidiary purpose the aim of changing those circumstances to fall within the Court’s jurisdiction under Section 38(6) [Article 57(6)] notwithstanding the comments of Hobhouse LJ.  Provided the primary purpose of a programme is to assess a present capacity, which could include the capacity to change over time or the capacity to accept treatment, the Court has jurisdiction to impose the programme on the local authority under the sub-section even though the programme may include a large element of therapy and the ancillary aim of initiating change for the better.”

These words are almost an exact quote of that part of the headnote which is headed Per Curiam.  This is itself a summary of what Thorpe LJ said when he questioned a potential interpretation of one sentence of Hobhouse LJ’s judgment in Re: B.  Thorpe LJ was of the opinion that a genuine assessment of a mother should not be excluded from the benefit of section 38(6) (Article 57(6)) simply because it might also bring about a change in the circumstances.  He then gave certain pertinent examples against which the headnote requires to be read.  Otherwise he expressed himself in broad agreement with the formulation expressed by Hobhouse LJ.
	Auld LJ agreed with the reasoning expressed by Thorpe LJ.  He went on to say that the assessment could include a joint assessment of the child and the parents, including their attitude and behaviour to the child.  Later he said at page 640:
“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.”

	Mr Long QC on behalf of the mother submitted that this passage supported the approach adopted by His Honour Judge Markey QC.
	Simon Brown LJ followed the reasoning in Re: B and stated that unless the programme could properly be characterised as one for assessment the court had no jurisdiction to make it.  He accepted that a programme for assessment could encompass an element of therapy or treatment.  If it was essentially one of treatment, it lay outside the courts powers.  He agreed with Thorpe LJ that the court would be concerned to determine what the primary purpose of the proposed programme was and whether the therapy element could properly be regarded as ancillary to it.
	Thorpe LJ based his reasoning on Re: C and Re: B and both Auld LJ and Simon Brown LJ agreed with him. What is characterised in the headnote as ‘per curiam’ is Thorpe LJ’s reservation about how one sentence of Hobhouse LJ’s judgment in Re B should not be restrictively interpreted.  His Honour Judge Markey QC has applied that portion of the headnote as the test to be applied to any programme.  It is implicit in that per curiam summary that the programme in order to qualify under Article 57(6) is in the first instance an assessment of the present circumstances and that it goes beyond that purpose by having a subsidiary aim of changing the circumstances (by therapy). That is made clear by the next sentence - “provided the primary purpose of a programme etc …. notwithstanding that the programme might include a large element of therapy”.  Of course there must be something more than therapy. At no time do the programmes in these cases contemplate the absence of the child and a programme for the mother alone.  
	After quoting a passage from Auld LJ’s judgment the learned County Court Judge then stated his conclusion.  He held that the purpose of the cognitive therapy is to see whether the mother’s commitment is strong enough so that she is likely to be able to change sufficiently in order that she could be considered as the carer of AH.  He qualified this by saying that this was the purpose in its initial stage and concluded that this information was necessary before rehabilitation could be ruled in or out.
	What Dr Pollock proposed for the mother was therapy and therapy alone.  The purpose of the therapy is to help the mother to cope with stress and not to react impulsively to it.  It is not an assessment of existing circumstances which has as a subsidiary purpose the changing of those circumstances.  Its primary purpose is to treat the mother’s symptoms and thereby to change the way she reacts.  It is not an assessment of a present capacity nor is it one which includes an assessment of a capacity to change over time or to accept treatment.  In applying that test the learned County Court Judge has overlooked the question - what is the primary purpose of the programme?  In doing so he has elevated a subsidiary purpose as sufficient to satisfy the test under Article 57(6) in the absence of the necessary primary purpose.
	That part of the headnote entitled ‘per curiam’ has to be read in the context of the type of programme about which Thorpe LJ was speaking.  He described the classic case of a residential assessment of mother and baby where the primary purpose of assessment is to assess her present capacity which may include the capacity to change or respond to treatment which also has an ancillary purpose of bringing about some change for the better.  This is not what was proposed by Dr Pollock.  He proposed treatment for the mother alone.  During the first 4-8 sessions of therapy here motivation to change could be assessed to see whether this was worth pursuing.  Where the learned County Court Judge has fallen into error was in identifying this assessment of her motivation as the primary purpose of the therapy and concluding that as it was assessment of her capacity to change it satisfied the type of programme and test about which Thorpe LJ was speaking.  What qualifies as assessment for the purposes of Article 57(6) and whether a particular programme is therapy or assessment or something of each which may not or may not satisfy the test laid down in Re: C and Re: B is not an issue which is always capable of easy determination. The difficulties that can arise are acknowledged by Thorpe LJ in his judgment in Re: D in the illustrations which he mentioned at page 638 to which I have referred.
	There is clear distinction between assessment and therapy.  A programme which comprises therapy does not fall within Article 57(6).  An assessment which has a subsidiary element of therapy may fall within the Article.  The usual assessment contemplated by Article 57(6) is an assessment of the child.  However, often a child cannot be assessed in the absence of his parents, whose care of him may be the substance of the issue before the court.  Therefore the interaction between child and parents will often, but not necessarily always, be an essential component of an assessment of a child.  Therefore a programme which involves an assessment of the parent and child may fall within Article 57(6).  A programme which involves an assessment of a parent in the absence of a child would not normally come within Article 57(6).  Whether a proposed programme of assessment of a parent, in the absence of a child, falls within Article 57(6), may depend on the individual circumstances of that case.  The circumstances which can arise in parent and child relationships are so variable that it would be inappropriate if not unwise to say that no programme of assessment of a parent in the absence of the child could fall within Article 57(6) and I do not require to do so for the purposes of this judgment.  However any programme of assessment of a parent in the absence of a child would require very careful consideration to determine whether it satisfied the requirements of an assessment within Article 57(6).  What was proposed by Dr Pollock was not assessment but therapy and that was the primary, if not the sole, purpose of it.
	As I have stated the therapy was designed to help the mother to improve her skills or capacity to cope with stress.  It is only sensible at some time shortly after therapy has commenced to evaluate whether the change sought has any realistic chance of success.  This is what Dr Pollock was suggesting could be assessed within the first 4-8 sessions.  This sensible but commonplace suggestion did not elevate either the assessment of her motivation to change or the proposed therapy, into an assessment of the child in way in which that phrase in Article 57(6) has come to be interpreted.  On that ground alone the direction of the learned County Court Judge cannot stand and the appeal against that part of his order must be allowed.  In those circumstances it is not essential to go on to consider the other argument that as the proposed treatment did not in any way involve the child it fell outside the jurisdiction of the court under Article 57(6).  While there may be circumstances in which an assessment of a parent in the absence of a child might fall within Article 57(6) I do not consider what was proposed by Dr Pollock on this occasion, if it was an assessment, to be a programme which in the absence of the child could fall within Article 57(6).  What was proposed was therapy for the mother to deal with her personal problems.  It did not relate to what Lord Brown-Wilkinson described as the interaction between the child and her mother.  The learned County Court Judge understood it to relate to establishing “whether the mother’s commitment is strong enough so that she is likely to be able to change sufficiently so that she could realistically be considered as a carer of the child”.  That could probably be said about most programmes to help mothers whose children are the subject of care proceedings yet not all and probably most could not properly be characterised as assessment of the child.
	There is no doubt but that Judge Markey QC was motivated to do what he considered best for the child and to create an opportunity for the mother to prove that rehabilitation was a realistic possibility.  Unfortunately that could not be directed as an assessment under Article 57(6) and I allow the appeal against that part of Judge Markey’s order and remove the direction as to the assessment.  Fortunately the Trust has offered the mother a voluntary programme designed to give her an opportunity to prove that rehabilitation is a realistic option.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

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A1/2000/OCP
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BETWEEN:

HOMEFIRST COMMUNITY HEALTH AND SOCIAL SERVICES TRUST

Applicant;

-and-

EH

Respondent.

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J U D G M E N T
O F
HIGGINS J
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