England and Wales Court of Appeal (Civil Division) Decisions
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B (Minors) [1998] EWCA Civ 1263 (22 July 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1263.html
Cite as:
[1999] 1 FLR 701,
[1999] 3 FCR 20,
[1998] EWCA Civ 1263,
[1999] Fam Law 206
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IN
THE SUPREME COURT OF JUDICATURE
LTA
98/6178/2
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE PORTSMOUTH COUNTY COURT
(HER
HONOUR JUDGE DAVIES )
Royal
Courts of Justice
Strand
London
WC2A 2LL
Wednesday
22 July 1998
B
e f o r e:
LORD
JUSTICE HOBHOUSE
LORD
JUSTICE THORPE
-
- - - - -
IN
THE MATTER OF
B
(Minors)
-
- - - - -
(Computer
Aided Transcript of the Palantype 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
MISS
H GRIFFITHS
(Instructed by Legal Services, Southampton City Council, Southampton, S015 1YG)
appeared on behalf of the Appellant.
MISS
C BRESLIN
(Instructed by Messrs Abels, Southampton) appeared on behalf of the Respondent.
MR
A HAND
appeared on behalf of the Guardian ad Litem.
-
- - - - -
J
U D G M E N T
(As
approved by the Court)
-
- - - - -
©Crown
Copyright
Wednesday
22 July 1998
JUDGMENT
LORD
JUSTICE HOBHOUSE: I will ask Lord Justice Thorpe to give the first judgment.
LORD
JUSTICE THORPE: This appeal concerns a boy who is just one year of age and who
is christened J. His future was the subject of care proceedings in the
Portsmouth County Court. The applicant local authority, Southampton City
Council, appeals the order made by Her Honour Judge Davies at the final hearing
in April 1998, an order which is explained in a reserved judgment which she
handed down on 1 May 1998. The local authority applied for leave to appeal and
a stay, but unfortunately towards the end of the 28 day period allowed. That
application was submitted on paper on 2 July 1998 when I granted a stay and
directed an inter partes hearing today.
The
principal point that has been advanced at this appeal concerns the extent of
section 38(6) of the
Children Act 1989 and whether the management elected by
the judge in her discretion falls within or without that statutory power.
The
history necessarily starts with an account of the lives of the elder children
born to these parents. The father is now 34 and the mother 25. Her first born
is a girl who is now 7, her second born is now 6, and her third born child is
now 5. Those three children were the subject of emergency protection orders
obtained in June 1993. They developed into interim care orders, and the
future of those three children was substantially settled by a judgment of Her
Honour Judge Norrie sitting in the Brighton County Court. She made care orders
in respect of the younger two children, but with a view to rehabilitation. The
care order in respect of the eldest child was with a view to an adoptive
placement.
The
rehabilitation plan failed and the same judge subsequently made freeing orders
in respect of the two younger children. By the time the parents moved from the
jurisdiction of the Brighton County Court into the jurisdiction of the
Portsmouth County Court, all three children had been placed for adoption.
About
six months after that move, the mother gave birth to the child with whom we are
concerned, J. In view of the history, the local authority applied for a care
order approximately a fortnight after his birth. The proceedings were duly
constituted with a guardian ad litem who sought advice from a Mrs Chimera, who
is a psychotherapist working under the supervision of Dr Baker at a clinic and
treatment centre which he operates in partnership with a Mrs Duncan in Woking.
Dr Baker has held consultant posts as a child and family psychiatrist. He
carries out specialist work in the field of child abuse. Mrs Duncan is a
clinical psychologist and she too has done much work in the field of family
relationships and child sexual abuse.
At
much the same time, the local authority instructed Dr Hutchison, the consultant
psychotherapist in post at one local hospital, to prepare a report on the
mother, and Dr Hook, the consultant psychotherapist in post at another local
hospital, to prepare a report on the father.
Mrs
Chimera's report was dated 18 November 1997. In that final section headed
"Recommendations", she said in paragraph 78:
"Individual
therapy for [the parents] along with couple therapy needs to start as soon as
possible...."
She
said that once therapy was underway and there had been regular attendance,
there should be a rehabilitation within a span of six to twelve weeks. She
held out the possibility of a future of natural parenting for the little boy.
Dr Hutchison's opinion, which was given on 19 February, was in relation to the
mother's capacity to respond to psychoanalytic therapeutic treatment, for her
deep seated problems. Her opinion of 19 February was that, while she had
reservations about the mother's ability to work in therapy, she thought that
there was still hope that she would be able to work in psychotherapy.
Accordingly, she was prepared to offer her the benefit of the doubt and offer
her individual psychotherapy for a period of 2 years. However, the current
waiting list prevented commencement in anything under 9 months.
Dr
Hook's report on the father, which was given a few days later on 23 February,
was much less optimistic. He said in his first concluding paragraph:
"Essentially
his personality disorder is untreatable. It is to be expected that there will
be some limited maturation with the passage of time."
The
next important stage in the development of professional opinion came on 1 April
when the guardian ad litem filed a report in preparation for the fixture. She
referred to the positive opinion of Mrs Chimera and to the more pessimistic
opinions of Dr Hutchison and Dr Hook. Her final opinion in the penultimate
paragraph of her report was:
"In
the light of the history and current situation for [J], it seems to me that
[J's] needs would best be met by a Care Order and placement permanently in an
adoptive family."
By
her report, she rejected the suggestion that she had obtained some 6 months
earlier from Mrs Chimera, and supported the local authority's application for a
care order. It was upon that basis that the case came before the judge on 21
April, three weeks after the filing of the guardian's report.
It
would appear that, although the guardian supported the local authority's
application, Miss Griffiths, who represented the local authority below, said
that she wished to cross-examine Mrs Chimera. Accordingly the guardian ad
litem telephoned Dr Baker's Ashwood Centre and, fortuitously, found
herself in conversation with Dr Baker. During the course of the conversation,
Dr Baker apparently said that he was in a position to formulate a therapeutic
programme which might result in the rehabilitation of J to his parents,
presumably ultimately under a residence order.
Despite
the clear conclusion expressed in her report of 1 April, the guardian was
attracted by this belated suggestion. Over the course of the adjournment
between the first and second days, Dr Baker managed to put into writing a
detailed statement of the programme which he had in mind. He spelled out
towards its conclusion his estimate of costs for a one-year therapeutic
programme of £68,280 plus VAT, to which would have to be added, in his
view as a matter of prudence, a contingency allowance of £18,080, making a
total of £86,360 exclusive of VAT. In addition, it would be necessary for
the local authority to rent, in the vicinity of the Ashwood Centre, a house
which would have sufficient accommodation not only for the parents but also in
due course for J, should he join them there, and for a support team who would
be exercising 24 hours' supervision. He said in his concluding paragraph:
"This
care package has been devised specifically for the matter before the Court ....
in response to the discovery that the best local service could not be available
before nine months."
That
seems to me to be a complete misunderstanding of the reality. However Dr Baker
was having to prepare a document at very short notice and without the usual
opportunity given to a forensic expert to master all the facts and
circumstances and to reflect upon the conclusion.
It
may be that the arrival of Dr Baker's written programme caused the local
authority to refer again to Dr Hutchison. On 26 April, still during the course
of the continuing trial, she filed a supplementary report in which she said
that she had read the papers annexed (the annexure showed sixteen statements or
reports which had been filed in the proceedings between their inception and 1
April). She said:
"The
reports contain many reference to character patterns that have not changed, and
that emerged during my assessment of [the mother's] ability to use
psychotherapy. Such changes in [the mother], or the couple, as are detailed in
the reports were known to me when I undertook my assessment. I can see no
reason to change my initial report."
A
similar reference to Dr Hook led to an even more detailed addendum dated 27
April. In that addendum Dr Hook first listed the relevant changes that had
been observed, then the relevant changes which were asserted and, finally, the
respects in which there had been no change.
He
expressed his opinion that the changes that had been observed were in the realm
of behavioural change and, unfortunately, did not indicate changes in the
father's capacity to understand his situation or his underlying personality
structure. He said:
"Those
changes which have been observed are in the context of the couple being on
their own without responsibility for a dependent child and this is crucial to
the assessment of the significance of those changes and the likelihood of the
recurrence of violence within the relationship."
The
submissions advanced to the judge at the end of the oral evidence, during the
course of which all four experts testified, were from the parents that there
should be a move into Dr Baker's belated proposal. That was supported by the
guardian ad litem. The local authority opposed those proposals, pressed for
the care order but, as a fall back position, conceded that if there was a case
for further assessment it should be conducted by the Cassell Hospital. They
undertook to meet the relatively slight costs of the initial outpatient
assessment, although they reserved their position with regard to a residential
inpatient assessment which might follow if the conclusion of the outpatient
assessment was that the family were suitable for further assessment.
The
judge's reserved judgment refers to the Cassell possibility at the outset of
the judgment when she records the submissions of the parties. She reverts to
that possibility only in passing when, in relation to Dr Hutchison's evidence,
she recorded Dr Hutchison's preference for the Cassell Hospital were there to
be a further assessment. At the end of her judgment, she referred to the
comparative cost of the Cassell Hospital when considering the submission that
Dr Baker's proposal was at a price that was quite disproportionate giving
due weight to the local authority's wider responsibility for children at large
within their area.
There
is no reasoned rejection in the judgment of the Cassell Hospital as an
appropriate referral for assessment. Indeed, at page 21 of the judgment, there
is this paragraph:
"Although
this judgment is given at the end of what was to be a final hearing I am
satisfied that this information should be before the Court before the only
alternative by way of adoption is accepted."
So
the inference from that paragraph was that the judge regarded herself as
choosing only between the Dr Baker package and adoption. That may be because,
in rejecting the opinion of Dr Hutchison, she regarded herself as rejecting Dr
Hutchison's preference for the Cassell Hospital as the appropriate treatment
referral. It is, in my judgment, a criticism of the judgment that insufficient
regard was paid to that alternative and insufficient reason given for its
rejection. I will return to those themes later in this judgment.
The
judge also considered the difference of opinion between Dr Baker and Mrs
Chimera on the one hand and Dr Hutchison and Dr Hook on the other. I should
emphasise that there seems to have been no disagreement between these experts
on any issue of fact. It seems to have been essentially a difference of
opinion and prognosis. The judge expressed her preference for the opinion of
Dr Baker and Mrs Chimera and reasoned that preference by saying that:
"I
come to the conclusion that I prefer the views of Dr Baker in particular and of
Mrs Chimera. What tips the balance so far as I am concerned is that Dr Baker
was involved in the previous proceedings [in the Brighton county Court] and has
knowledge of this family in greater depth going over a longer period of time.
At the time of the previous proceedings his view relating to the parents'
ability was negative. It is perhaps therefore the more persuasive that he now
feels that there is a significant prospect of change for these parents."
In
relation to change, she said:
"I
ask, in particular, to what extent have the mother and father changed? Dr
Baker and Mrs Chimera say that there has been some change and an indication of
potential for change. I accept their assessment in this context."
It
is to be noted that the work done by Mrs Chimera under the supervision of Dr
Baker was essentially concluded in November 1997. Any evaluation of change was
between the completion of the proceedings in the Brighton County Court and the
forensic assessment filed in November 1997. Furthermore, at page 10 in the
judgment, the judge specified those changes in her review of Mrs Chimera's
evidence. They were four in number. It is conceded that the time frame within
which those changes were being posited was the timeframe concluding November
1997. What the judge does not seem to have evaluated in relation to the
parent's capacity to change was the important period between November 1997 and
April 1998, as to which the only evidence was that of Dr Hook and
Dr Hutchison which was all one way.
In
reaching her conclusion the judge evaluated the local authority's argument that
it was quite disproportionate to impose upon them a cost in relation to a
single child, which was likely to approximate £100,000 in the year ahead.
She balanced that against a number of considerations which, in my opinion, are
of very doubtful relevance. She said that an advantage, as it were a cost
benefit advantage, of taking Dr Baker's route might be that subsequent adoption
proceedings were less likely to be contested. She said that regard had to be
had to the probability of the parents having further children and the
additional costs associated with further proceedings if the parents had not
received the therapy that Dr Baker was prepared to offer.
The
judge specifically considered the question as to whether she had jurisdiction
to impose Dr Baker's programme on the local authority within the bounds of
section 38(6). She concluded that she had that jurisdiction and that she
should, in the exercise of her discretion, resort to the jurisdiction.
Mr
Munby's attack on the judge's judgment is powerful. It has been succinctly
summarised in his notice of appeal and subsequently expanded in his skeleton
argument. In his notice of appeal he advances the contention that Dr Baker's
programme was not an assessment in any interpretation of that word, but was
rather more a therapeutic programme designed to improve the adult's capacity to
parent. He also attacks the programme on the basis that it had a duration of
12 months, during the first three months of which the parents would be based in
another county undergoing their therapy, and having only regular supervised
contact to the child who would continue in residence with the foster parents
within the applicant's jurisdiction. Thereafter, assuming the most optimistic
outcome, there would be a period of anything up to eight months during which
the child would effectively have been rehabilitated, but during which there
would be continuing extension of interim care orders, contrary to their proper
use under the statute.
In
his submissions, Mr Munby has conceded that a programme is properly labelled
"assessment" even if there is an ingredient of ancillary therapy. He also
concedes that the programme may properly be labelled "assessment" within the
bounds of
section 38(6) if, as well as assessing the child, the professionals
carry out an assessment of the parents. A line is to be drawn, he says, to
exclude a programme that is substantially therapeutic even if it involves some
element of assessment as it progresses. He says that certainly to be excluded
is an assessment of a parent which may involve some ancillary assessment of the
child. These boundaries need to be drawn in the light of the following words
of
S 38(6):
"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."
The
rest of the subsection is unnecessary for the purposes of this appeal.
It
was long thought that the true construction of that section precluded a judge
from ordering a residential assessment which was not of the child alone but of
the family. However, the decision of the House of Lords in
Re
C (A Minor) (Interim Care Order: Residential Assessment
[1997] AC 489 showed us that a wider construction of the subsection is
permissible. Particularly from the speech of Lord Browne-Wilkinson, we learned
that there is jurisdiction under this subsection to direct a residential
assessment of the parents and child as a whole family unit.
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? Manifestly the most likely alternative is therapy which lies outside the
bounds of the section.
I
am in no doubt at all that Mr Munby is right when he characterises Dr Baker's
proposal as essentially a programme of therapy for the parents with a view to
improving their prospects of providing good enough parenting rather than a
programme of assessment. He rightly stresses that there had been a number of
assessments to guide the judge, and they were all complete and in evidence
before her. They were, in the main, pessimistic. Essentially Dr Baker was
offering a treatment programme that would address the parent's 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".
Mr
Munby's second submission in a sense is unnecessary therefore to address. He
developed the argument that, essentially, the judge could not opt for Dr
Baker's proposal without falling into abuse of the interim care order regime.
It would have involved the court in making an extended series of interim care
orders for little purpose other than to enable the parents to receive the
extensive therapy that they as adults needed, without the necessary
consideration at the end of each 28 day period as to whether the needs of the
child were met by the extension of the order. As he says, the point which the
use of interim care orders becomes the abuse of interim care orders is hard to
define but easier to recognise. I would tend to think that Mr Munby was
probably right in suggesting that had there been no challenge under
section
38(6) there would have been grounds for challenge on the basis that, once the
judge had determined, as she did under
section 31 of
the Act, that the
threshold criteria had been met, it would have been an abuse of her statutory
power thereafter to control the local authority's management of the child's
life by a series of repeated interim orders covering a period as long as 12
months.
Mr
Munby's third submission in relation to budget, is again unnecessary to
address. He quite rightly stresses that £100,000 is an extremely heavy
liability for a local authority, particularly one that has set a budget in this
field of only approximate £50,000 per annum. The speech of Lord
Browne-Wilkinson stresses the importance of giving proper weight to the due
proportion of benefit to the instant child against the local authority's wider
responsibilities for children generally within their area.
The
contrary submissions from Miss Breslin for the parents, and Mr Hand for
the guardian ad litem, do not essentially dispute the propositions of law
advanced by Mr Munby. Each of them say that on the facts of this case the
decision fell within and not without the boundary.
I
am perfectly satisfied that this is a judgment and order that cannot stand. I
am perfectly satisfied that the judge was wrong in law to make the order which
she made. I am equally satisfied that she was wrong in the exercise of her
discretion and I will shortly explain why.
With
all due respect to the judge, who of course had the opportunity to see and hear
the experts, I think that she was wrong to prefer the opinion of Dr Baker and
Mrs Chimera. The essential issue was the capacity of the parents to change in
response to psychotherapy. That issue fell particularly within the field of
the expertise of Dr Hook and Dr Hutchison. Her reason for the preference of
the evidence of Dr Baker and Mrs Chimera does not in my judgment stand
analysis. It is true that Dr Baker had had a forensic involvement throughout
the proceedings in the Brighton County Court. But against that had to be
weighed the fact that he had had precious little forensic involvement with this
case and seemingly none between the date upon which Mrs Chimera completed her
investigations and the fortuitous telephone call with the guardian ad litem on
the first day of the hearing.
The
optimistic assessment that he advanced of the success prospects exceeding 50
per cent has to be questioned. On what evidence was it based? The only
evidence of change was the evidence of Mrs Chimera relating to an earlier
period. There was certainly no optimistic evidence of change in the more
recent period. Nor does the 10 to 15 per cent possibility of success advanced
by Dr Hutchison seem to have been much considered. It seems to have been
dismissed absolutely. The likelihood of some percentage between the two seems
not to have been considered.
I
have already referred to the absence of any reason for the rejection of an
assessment at the Cassell Hospital, if any assessment was appropriate at that
stage. The Cassell hospital is the resource of ultimate expertise and
experience in this field, particularly for the residential psychotherapeutic
assessment and treatment of parents and children as a whole family unit. Their
expertise in assessing whether or not a family is treatable is unrivalled. If
the judge thought that there was a real issue still alive in April 1998 as to
whether this was a treatable family, then greater consideration should have
been given to the possibility of a referral to the Cassell to advise her on
that issue. One of the obvious advantages was that it would have been possible
for the Cassell to have given a preliminary opinion on outpatient assessment
within a timescale that would have enabled J to be placed, or certainly
directed towards placement, within the first year of his life if the outcome of
the outpatient referral had been negative.
There
are two points I would like to emphasise in conclusion. The first is that,
whatever may be the jurisdictional position in relation to
section 38(6), it is
important to emphasise that the successful operation of the
Children Act 1989
depends crucially on interdisciplinarity and partnership. It seems to me that
the circumstances in which a judge finds himself or herself in conflict with
the responsible local authority should be restricted to the absolute minimum.
It is an order of last resort to impose on a local authority an obligation to
spend something in the order of £100,000 on a single child if the local
authority are resolutely opposed. If there is a residential assessment option
which is acceptable to the local authority, it should, I would hope, almost
always result in a judicial preference for the acceptable expensive option
rather than the unacceptable expensive option.
Finally
this case illustrates the importance of careful preparation and careful
attention to proper procedures as the litigation develops towards its final
hearing. This very experienced judge was ambushed into an exceptionally
difficult trial. Had it been made plain, as it should have been, at least at
the pretrial review stage, that there was a serious issue to be determined as
to the boundaries of
section 38(6), as to final care order or rehabilitation,
as to the parent's capacity to respond to treatment, and had it been discerned
that there was a divergence of professional opinion, this might well have been
seen as a case appropriate for referral to the liaison judge and transfer for
trial by a judge of the Division. It is a recipe for unsatisfactory results if
the available options are unperceived until the trial develops and if the
available options are settled in haste under pressure of time without proper
opportunity for them to be reflected upon, and without proper opportunity for
the experts to get together well in advance to discuss their respective
positions to see to what extent they truly do disagree.
However,
both on the question of law and also on the question of discretion, I am clear
that this order cannot stand and must be set aside. It is manifest that we
must exercise discretion afresh. It is simply unthinkable to contemplate a
re-hearing if the child's needs do not permit. The real choice is between a
care order simpliciter or, arguably, a return to an interim care order with a
direction under
section 38(6) for an outpatient assessment by the Cassell
Hospital. In my judgment, the first of those two options is the proper choice.
It
is now three months on in the life of this young child. This court knows
nothing as to whether the Cassell has a vacancy to take the referral. It is
simply too unstructured a development. However, once the local authority leave
this court with a care order, it is not only open to them, but also incumbent
upon them, to consider how they will discharge the responsibilities that flow.
Obviously I anticipate that they will discuss with the guardian ad litem how
they should implement the responsibility and they will, no doubt, give careful
consideration to the views expressed by those who advise the parents. If they
should, in the exercise of their judgment, think it appropriate to seek an
outpatient referral to the Cassell Hospital for an assessment, then that at
least would be supported by the guardian ad litem and might be seen by the
parents as some mitigation of what they will no doubt find a hard judgment to
accept from this court. I would propose that the appeal be allowed and that
the order made by the judge should be set aside and a care order made in favour
of the applicant.
LORD
JUSTICE HOBHOUSE: I agree that this appeal should be allowed for the reasons
given by Lord Justice Thorpe. There are a large number of aspects of this case
which have given this court concern. I would adopt everything my Lord has said
about them.
I
would like to say something about the question of the jurisdiction of the judge
and the powers of the court under
section 38(6) of the
Children Act 1989.
It is important at the outset to distinguish between the powers of the court
and the criteria which the court has to apply in deciding whether or not to
make an order and, if so, what that order should be. There has been a
tendency, certainly in some of the reasoning which we have examined during the
course of this hearing, and some of the arguments to which we have listened, to
elide the two. The criteria are by and large set out earlier in
the Act. One
can find them in
section 1.
Under
section 1(1) the welfare of the child shall be the court's paramount
consideration. That is so, but it does not lead to the conclusion that
everything that might tend towards the child's welfare is within the powers of
the court. The relevance of that subsection in the present case is that it
puts in context the question of cost. Cost is not a paramount consideration.
If Parliament had thought otherwise it would have expressed
section 1
differently. However, it remains the case, as said by Lord Browne-Wilkinson in
Re
C (A Minor)
[1997] AC 489, at page 584:
"In
exercising its discretion whether to order any particular examination or
assessment, the court will take into account the cost of the proposed
assessment and the fact that local authorities' resources are notoriously
limited."
Similarly,
under
section 1(2) there is an injunction to the courts to avoid delay. The
reasons for this are obvious. All delay or drawn out legal proceedings
militate to the disadvantage of the child unless there are countervailing
advantages.
Under
subsection (3) there is the check list which, it is to be noted, applies to
Part 4 of
the Act as well as
section 8, and which, relevant to the present
context, requires the court to have regard to any harm which the child has
suffered, or is at risk of suffering. Under (f) and (g):
"(f)
How capable each of his parents, and any other person in relation to whom the
court considers the question to be relevant, is of meeting his needs.
(g)
The range of powers available to the court under
this Act in the proceedings
in question."
The
capacity of the parents to meet the needs of the child is a relevant
consideration to take into account and was indeed one of the foremost, if not
the foremost, relevant consideration in the present case in the making of the
various orders by the court over a number of hearings.
It
must be stressed at this stage that there is nothing abnormal about the child.
The problem in this case concerns the problem of the fitness of the parents and
their capacity to look after the child and protect him from the risk of
suffering.
By
contrast the
orders
that the court has the power to make are governed in the present context by
Part 4.
Section 31 relates to the making of care orders,. Ancillary to that
is the power under
section 38 to make interim orders.
Section 33 is also
relevant. It can be noted that
section 37(1) gives the court power:
"Where,
in any family proceedings, in which a question arises with respect to the
welfare of any child, it appears to the court that it may be appropriate for a
care or supervision order to be made with respect to him, the court may direct
the appropriate authority to undertake an investigation of the child's
circumstances."
That
applies at a different stage to that with which we are concerned, but it raises
parallel considerations.
Under
section 38(6) and
38(7) the court is given specific powers, with a
specific purpose, to be exercised in a specific situation:
"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....
(7)
A direction under subsection (6) may be to the effect that there is to be-
(a)
no such examination or assessment; or
(b)
no such examination or assessment unless the court directs otherwise."
The
understanding of those provisions has now been the subject of authoritative
guidance and decision by the House of Lords in the speech of Lord
Browne-Wilkinson, with which the other members of the House agreed in the case
of
Re
C
,
to which I have already referred. The general context was stated by Lord
Browne-Wilkinson at page 500:
"In
many cases, including the present, the determination of the question whether
the court should make a final care order under
section 31 requires information
to be gathered as to the child's circumstances and for that information to be
placed before the court to enable it to make its decision.
....
Therefore
the context in which
section 38(6) has to be considered is this. The child in
the care of the local authority under an interim care order pending the
decision by the court whether or not to make a final care order. Under the
interim care order the decision-making power as to the care, residence and
general welfare of the child is vested in the local authority, not in the
court. However, for the purpose of making its ultimate decision whether to
grant a full care order, the court will need the help of social workers,
doctors and others as to the child and his circumstances. Information and
assessments from these sources are necessary not only to determine whether the
section 31 threshold has been crossed (including the cause of the existing or
anticipated harm to the child from its existing circumstances) but also in
exercising its discretion whether or not to make the final care order."
There
are passages to similar effect on page 551 and towards the conclusion of the
judgment at page 504. They identify the purpose for which the power in
subsection (6) exists. As regards the character of the power, Lord
Browne-Wilkinson says at page 502:
"Next,
it is true that the subsections (6) and (7) only refer to the assessment 'of
the child' and not, as is proposed in the present case, a joint assessment of
the child and the parents, including the parents' attitude and behaviour
towards the child. 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. This is shown particularly clearly by cases in which the courts
have to decide whether the threshold requirements of
section 31 are satisfied
because of the harm to the child that is likely to be suffered because the
child is beyond parental control. How can the court determine that issue
without consider the relationship between the child and the parents? The court
has no power to order parents to take part in any assessment against their
wishes any more than, as the final words of subsection (6) show, the court can
order the child to do so if the child is capable of making an informed
decision. But what the interests of justice require is not a power to compel
the parent to take part in such assessment but a power in the court to override
the powers over the child which the local authority would otherwise enjoy under
the interim care order. If the narrower construction were to be adopted the
local authority could simply refuse to allow the child to take part in any
assessments with his parents."
These
citations with regard to the power under
section 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
section 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
section 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.
That
indeed was the position as it was held to exist by the House of Lords in the
case of
Re
C
.
The actual assessment regime is recited by Lord Browne-Wilkinson on page 495.
It is clearly of the character of a controlled assessment in suitable
conditions. I need only quote a part of it:
"At
this stage in the assessment we feel that a more in-depth assessment at a
residential unit is essential and should be undertaken as soon as possible.
This placement would need to be fully supervised and in an attempt to test out
for longer and more realistic periods of time the parents' ability to cope
whist affording protection."
The
other matter which emerges from the consideration of the subsection and is
expressly covered by what Lord Browne-Wilkinson says is the relationship
between the order and the local authority. The order must be an exercise of a
power in relation to a child and be one which, as it binds the local authority,
binds the local authority as having the interim care of
the
child
.
This point can be illustrated by reference to the order that was made in this
very case. It does not spell out any programme, it simply says in paragraph 3:
"There
be a direction that the local authority be responsible for funding the
therapeutic programme."
The
thrust and substance of the relevant part of the order is that it is requiring
the local authority to assume the responsibility for the funding of a
particular programme. The programme which the local authority were required by
the order to fund was a programme which was described by Dr Baker in the
document he submitted under the circumstances described by my Lord in the
following terms:
"The
following proposal has been designed to meet the
assessed
needs of [J] should the court decide to order a plan of trial of
therapy
and rehabilitation
under the auspices of an Interim Care Order." [My emphasis]
It
is abundantly clear from reading the text, and indeed from reading the judgment
of the judge, which referred not only to the written evidence but also the oral
evidence, that this was a programme for therapy for the parents. Furthermore
it was an appropriate programme which was going to extend over a considerable
period of time, something of the order of 12 months for the mother; as regards
the father it was thought that a further 12 months beyond that, making a total
of two years, might well be required.
It
can also be commented that it was a programme which was only expected have a
limited chance of success. On one side the figure was put at above 50 per
cent, on the other side, that is the witnesses called on behalf of the local
authority, the chances of success were rated at either nil or very much lower
than 50 per cent. That is the character of what the local authority was being
required to pay. 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
section 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 of the judge 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.
In
my judgment the judge exceeded the powers open to her and we have no
alternative but to allow this appeal. On that ground, as well as the other
grounds which have been referred to by my Lord, it falls to us to exercise our
discretion in place of the discretion which was wrongly exercised by the judge
below. I agree with my Lord for the reasons he has given that we should make a
care order in this case. There may be other matters with which we have to deal
on this appeal. However in any event this appeal will be allowed and the care
order will be made.
Order:
Appeal allowed. Judge's order to be set aside and care order made in its
place. No order as to costs. Leave to appeal to the House of Lords refused.