England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE 1999/6020/2

(HIS HONOUR JUDGE R P V JENKINS )

Royal Courts of Justice

Strand

London WC2

Wednesday 12th May 1999

B e f o r e:

LORD JUSTICE SIMON BROWN

LORD JUSTICE AULD

LORD JUSTICE THORPE

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D (A CHILD)

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(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

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Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR J MUNBY QC and MR A PERKINS (Instructed by the Legal Division, Lincolnshire County Council, County Offices, Lincoln) appeared on behalf of Lincolnshire County Council

MISS E SELMAN (Instructed by Messrs Langleys, Silver Street, Lincoln) appeared on behalf of the Mother

MR S MASKREY QC and MR B ROACHE (Instructed by Sills & Betteridge, 46 Silver Street, Lincoln) appeared on behalf of the Litigation Friend

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Wednesday 12th May 1999

JUDGMENT

LORD JUSTICE THORPE: This appeal concerns a little boy, O, who is five months of age. His mother is 23 years of age and his father is 37. The mother has had a sad life. She sustained abuse as a child and at the age of 12 was seeking solace in the sniffing of gas and the abuse of alcohol. She progressed into abusing drugs and in 1990 was herself made a ward of court when pregnant. Her firstborn, E, was delivered on 20th April 1991. At a very early stage the mother decided that her son should be raised by her own mother and E, who is now eight, remains in the care of his maternal grandmother.

The father and mother met in 1994. Both of them were in varying degrees drug-dependent and both of them were financing their dependency through criminal activities, intermittently receiving sentences of imprisonment. The mother's confinement with O came on 12th November 1998 and the local authority immediately applied for a care order. An interim order was made in the family proceedings court when O was only four days old. There has since been a series of interim care orders, made first in the family proceedings court and more recently in the county court. Under their control, O was discharged into his mother's care at the maternal grandmother's home on 29th November 1998. However, the mother's lifestyle continued to be chaotic and despite a written agreement between the mother and the local authority, which was designed to introduce some boundaries into her life, the local authority intervened on 12th February 1999 to remove O from the mother's care. He has since been in the care of foster parents.

The guardian ad litem (now called a litigation friend) instructed an expert to report on the parents. Her choice was a clinical psychologist, Mr Hopley, who is part of the NHS Leicestershire mental health service team. His report on the mother, dated 12th March, includes these opinions, and I quote from page 77 of the bundle:

"She has, with the passage of time, found that the influence of drugs upon her emotional state has assisted her not only to cope with the trauma of early childhood sexual abuse, but also with other difficulties that she has experienced in life."

Later on the same page:

"I do not believe that she will succeed in becoming totally abstinent from drugs until these underlying emotional issues are addressed and believe the adulterated urine sample that she provided is witness to this fact."

Mr Hopley recommended that the mother should receive treatment at a single-sex residential unit, particularly favouring one in London. However, the choice moved towards a mixed-sex but more local resource in Sheffield called Phoenix House, and on 17th April a statement in the proceedings was filed by Ann Brown, who is the senior practitioner at the establishment. She said in relation to the prospective admission of the mother:

"We would also be providing therapeutic counselling with regard to drug use. I am aware, however, that [the mother] has other difficulties. She has significant emotional problems to do with her background and upbringing. I believe that any work in this regard would be better carried out by a different counsellor who could be brought in but who might be able to continue working with [the mother] after she had left Phoenix House. I suspect that there could be something of a conflict if the same counsellor tried to deal with these problems as was dealing with the drug use."

The local authority had viewed Phoenix House to determine whether it supported the guardian's choice, and its reaction came with the third statement of Mr Larkin, the social worker in the case, dated 21st April. He said, under the heading "Conclusions":

"I feel that the best way forward is to build on the positives already in [the mother's] life. I understand that her solicitor has already made arrangements for her to be considered for 'de-toxing' at Mapperley Hospital in Nottingham. Once this is successfully completed, I recommend that she returns to her home and with the support of the Social Services, [the] Children's Centre, [Ms J] from the Women's Centre and the Lincoln Clinic, she takes care of [O]. Practical help and child protection advice can be offered by Social Services; practical help, emotional support and social links by [the] Children's Centre; emotional support and social links by the Women's Centre and relapse prevention vis a vis her drug abuse by the Lincoln Clinic. This is a short-term strategy, as the underlying causes of her drug abuse would not be therapeutically addressed within this net of care."

It is to be emphasised that all this evidence was prepared very close to a directions appointment fixed for 22nd April before his Honour Judge Jenkins in the Lincoln County Court. Thus Mr Larkin's statement was dated on the eve of the hearing. It seems that the judge decided at a relatively early stage to hear oral evidence and at the end of the first day he adjourned the hearing over to the following Monday, 24th April.

On that second day, there emerged a report from the Lincoln Clinic which had been written on 20th April but, because it was addressed to the mother's GP, it did not become available to the parties before the judge until the second day. The report from the Lincoln Clinic was in negative terms. They commented on the mother's poor commitment to attending appointments and concluded, following general discussion with the team, that she could not be recommended for detoxification at this date. However, we are told that the local authority reacted in a very positive fashion by saying that they would nonetheless stand by their offer of detoxification at Mapperley and, if that could not be funded through the NHS because of the Lincoln Clinic's conclusion, they would themselves fund it.

The issue before the judge was clearly developed along the predictable line that the crucial factual issue for his determination was whether the programme proposed by the guardian ad litem was a programme of assessment or a programme of therapy. That was obviously discernible as a crucial issue, given the decisions in relation to the limits of the court's jurisdiction to order interim management programmes in the face of opposition from local authorities holding interim care orders. There can be no doubt at all that the statement of Ann Brown was settled with that crucial issue to the fore and throughout the statement she emphasises those aspects of the work at Phoenix House that could legitimately be termed assessment and she uses the label "assessment" very freely throughout her statement.

At the end of the second day of evidence the judge delivered an extempore judgment late in the evening, in which he sought to explain why he preferred the evidence of Miss Brown and on the facts he reached the conclusion that what the guardian ad litem proposed was indeed a programme of assessment and therefore a programme which it was within his jurisdiction to impose. Accordingly, the order that he drew said in paragraph 2:

"The Lincolnshire county council shall undertake a six month residential assessment of the mother . . . and the child at the Phoenix House Family Centre . . . Sheffield"

and, by the following paragraph, that this case should be set down for final hearing before him on 6th March 2000 at the Lincoln Combined Court Centre.

Subsequently it was arranged that the six-month residential assessment should commence on 12th May and the local authority with some urgency applied to this court for leave to appeal, that leave having been refused by Judge Jenkins. The application for leave came before the single judge on paper on 10th May and a direction was given for an immediate hearing of the application, with appeal to follow if leave granted, fixed for the following day, 11th May. Yesterday leave was granted and the appeal proceeded.

Mr Munby, for the local authority, advanced as his first contention that the judge was in fact and in law wrong in concluding that the programme proposed was an assessment within the meaning of section 38(6) of the Children Act 1989. The programme was in essence a programme for detoxification and rehabilitation of the mother and the judge accordingly had no power to order that programme. It was agreed that that submission should be taken as a preliminary point to which all parties would present their arguments since, obviously, if it succeeded, there would be no need to address any of Mr Munby's other grounds.

In support of that first ground, Mr Munby QC submitted shortly that the judgement below did not properly apply the distinction defined by Holman J in the case of Re M (Residential Assessment Directions [1998] 2 FLR 371 and the same distinction identified by this court in the case of Re B (Psychiatric Therapy for Parents [1999] 1 FLR 701. He submitted that a programme does not become an assessment simply because a judge so labels it and that there were no justifiable features of the programme that could lead the judge to that finding.

Mr Maskrey QC for the litigation friend made a brave and persuasive submission which came close to challenging the whole approach developed in the cases of Re M and Re B . He would minimise the distinction between assessment and treatment, providing that what was ordered was relevant to enable the judge to determine the final application. He said that it was for the judge to decide if a care order is appropriate. The judge had to consider the care plan. His role was investigative and it was for him to decide what he needed to determine the primary question. It was not for the local authority to control the material available to him. He said that section 38(6) must be so broadly construed. The question, he said, must be: does the proposal advanced provide the judge with information that would assist him in making his final decision? The crucial questions should be: what is the purpose and what is the effect of the order? He submitted that the assessment was not to be confined to an assessment of present circumstances, as on one reading the authority of Re B seemed to suggest. If that was the law, then he accepted that he would lose this appeal. But he said that here, even if detoxification was not to be classified as an assessment, it was a prelude to an assessment which would be carried out in the same unit.

Miss Selman for the mother, adopting Mr Maskrey's submissions, added that assessment is the gathering and examination of information over time as to the parent's capacity to parent. It assists the parents to recognise their problems. An assessment must include an element of achieving change. That would not be the primary function, it would be an ancillary function of the assessment.

In reply, Mr Munby accepted that the judge had an investigative power and could exercise it in order to gather information pertinent to the final determination of the case, but only if the information was derived from an assessment.

I turn then to consider what is the state of the law in relation to the issues argued. The decision of the House of Lords in Re C (a minor) (Interim care order: residential assessment [1997] AC 489 settled the debate as to the proper construction of section 38(6). The speech of Lord Browne-Wilkinson established the context in which the section has to be considered, namely that the interim care regime leads to the making of the ultimate decision whether to grant a full care order. At page 500G Lord Browne-Wilkinson said:

"Section 38(6) deals with the interaction between the powers of the local authority entitled to make decisions as to the child's welfare in the interim and the needs of the court to have access to the relevant information and assessments so as to be able to make the ultimate decision. It must always be borne in mind that in exercising its jurisdiction under the Act, the court's function is investigative and non-adversarial".

It is, of course, from that passage that Mr Maskrey derives his submission.

Having set out the two possible constructions, Lord Browne-Wilkinson opted for the broad and purposive construction. He said at page 501G:

"I therefore approach the sub-section on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority's application to take the child away from its parents by obtaining a care order. To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court's judicial decision."

There is no distinction drawn in this speech between assessment and treatment. That distinction is one which family lawyers and judges have often drawn in categorising conversations between adults and children who may have been the victims of abuse. Is the purpose of the conversation investigative - that is to say, to explore what has happened; or is its purpose therapeutic - that is to say, to help the child to come to terms with past experience? So it may not be surprising that specialist family judges in the cases of Re M and Re B have both independently set the same bounds on the judge's power under section 38(6) to direct specific management in the interim leading up to a final hearing. I say "independently" because Re M was decided in March 1998 and not cited to this court in Re B in July 1998. As to the decision in Re M , I of course endorse the boundary that Holman J sought to draw, although I would not necessarily have drawn it, as he did, at the conclusion of the Cassel Hospital's eight-week initial assessment. But the prerequisites that he formulated may have the effect of distracting from what I believe to be the crucial question, namely the question of jurisdiction. The first and third prerequisites go to jurisdiction, emphasising the importance of the guidance on the construction of section 38(6) offered by Lord Browne-Wilkinson in Re C ; the second and fourth prerequisites, however, go to the exercise of discretion, assuming the jurisdiction exists. The second prerequisite rightly emphasises that any direction must promote the best interests of the child, and the fourth that no direction should place an unreasonable burden on the local authority.

So it may be more helpful to judges to start with the root question, namely whether the broad and purposive construction of section 38(6) confers jurisdiction to make the particular direction sought. Only if jurisdiction exists do considerations relevant to the exercise of discretion arise.

The bounds to the court's discretion are stated in Re B . I accepted that a programme may be an assessment within section 38(6) even if there is an ingredient of ancillary therapy, but I held that a programme which is substantially therapeutic does not fall within section 38(6) even if it involves some element of assessment as it proceeds. Clearly the programme under consideration in that case was not an assessment of the child but a therapeutic programme designed to improve the adults' capacity to parent. The judgement of Hobhouse LJ is to like effect but more fully and more strongly expressed. Having reviewed the statutory framework, and having cited the crucial passages from the speech of Lord Browne-Wilkinson in Re C , he said at 712G:

"These citations with regard to the power under s 38(6) demonstrate that there is a line to be drawn and distinctions to be made. First, it is necessary to distinguish between an examination or an assessment on the one hand and something which is more properly described as treatment or therapy on the other. The former comes within the scope of s 38(6), but the latter does not. Further, there is a distinction to be drawn between matters which involve the child alone or the child/parent relationship on the one hand, and the parents alone on the other side. The former comes within the scope of the subsection, the latter does not. As Lord Browne-Wilkinson said, 'The interaction between the child and his parents or other persons looking after him is an essential element in making any assessment of the child'. It still has to be properly described as an assessment of the child.

These distinctions can be easily illustrated. For example, the difference between a scheme for the medical treatment of a parent is clearly something which is not within the scope of the subsection. A parent may need surgery, may need the provision of prostheses, or may need, as was the fact in the present case, psychiatric therapy. Those are not matters which fall within the province without more of s 38(6). They fall on the wrong side of the line.

It is not an answer to say simply that once the surgery has been performed or the psychiatric therapy has been given that one would be able to see and tell how well the parent is performing at that stage. The substance of what has happened in the administration of treatment or therapy is to change the circumstances, not to assess the existing circumstances. Similarly, it is no answer to say that surgery or therapy for the parent will help the child. That is not the question which is raised by the exercise of the power itself. Nor is it enough to say that once the therapy or surgery has been given then an assessment will be made, or even that assessments will be made on the effectiveness of the therapy whilst it is going on. If the substance of the matter is therapy or treatment, then it is not something which the court is entitled to order. If the substance of the matter is assessment under controlled circumstances, then it does fall within the scope of the subsection."

Then at 714C he continued:

"It is relevant in a situation such as this to ask the question, 'What is it that the local authority have been required to pay for?' If the answer that is given is that they have been asked to pay for a course of therapy for the parents, then that is something which does not properly come within the powers of the court under s 38(6). It is not open under that subsection for the court to order therapy for the parents, let alone to order the local authority to bear the cost of it.

In my judgment this order went clearly beyond the scope of what was within the power under the relevant subsection. I consider it is salutary that this case has come before the Court of Appeal. One can see how easy it is to slide from the situation which was recognised as being legitimate by Lord Browne-Wilkinson in Re C , to a situation which is clearly on the wrong side of the line as is demonstrated by the present case."

I am in broad agreement with his formulation, although there is one sentence in his illustrations of the essential distinction that has given rise to considerable difficulty in this appeal. It is the sentence at 713B, "The substance of what has happened in the administration of treatment or therapy is to change the circumstances, not to assess the existing circumstances." In my opinion that should not be read as a rule that excludes from the section 38(6) jurisdiction any programme that seeks or intends to change existing circumstances. An assessment may well not have change for the better as its goal. Classically the court may simply require a residential evaluation of mother and baby attachment that the limited exposure of contact meetings does not permit. But in the case of a teenage mother, ill-equipped for the responsibilities of caring for a vulnerable new-born baby, one of the goals of the residential assessment may be to improve her practical skills by teaching and practice in a controlled environment. But even there the primary purpose of the assessment is to evaluate her present capacity to accept help and advice. The provision of that help and advice within the assessment period is ancillary. So too the purpose of the residential assessment may be to assess the parents' capacity to respond to treatment intending to resolve or diminish emotional or psychological disorders currently disabling the parent from achieving an adequate standard of parenting. During that period of assessment psychotherapy may be offered, partly to assess the parents' capacity to enter into a therapeutic relationship, but at the same time initiating the necessary process of change. Again the primary purpose is to assess a present capacity, the capacity to accept treatment, and the aim to initiate change for the better is ancillary. As the case of Re M demonstrates, if the assessment of the capacity to accept treatment results in a positive conclusion, a subsequent treatment programme may well fall outside the section 38(6) jurisdiction since its primary purpose has switched from assessment to treatment. Equally, there may be cases in which it is necessary to conduct a residential assessment of a dysfunctional family. During the residential assessment professionals will inevitably work towards improving the family dynamics. But the primary purpose of the residential assessment remains to test the capacity of the family to change and the delivery of professional services in that interim remains an ancillary objective. It may be that in individual cases the distinction will not be particularly easy to discern or draw. Of course, any specialist responsible for a treatment programme constantly reviews progress and at its conclusion evaluates outcome, but that ingredient is ancillary and cannot be dressed as assessment because of its existence as an inevitable ingredient of the treatment programme.

Applying the distinction drawn in Re B to this case, I am in no doubt that Mr Munby succeeds in his primary submission. Looked at realistically, what the guardian proposed was a treatment plan for the mother. It had two primary components, the treatment of her underlying emotional and psychological disorder by a psychotherapist independent of the specialist residential unit and the treatment of her drug addiction by that unit. The mother's capacity to relate to her baby was not substantially in question, although her care of O would be closely supervised and assessed during her stay. It would in my judgment be quite unrealistic to categorise the proposal as an assessment of O. Of course there are distinctions between this case and the case of Re B . It can fairly be said that here the local authority accepted that the case had not evolved sufficiently to enable a final decision to be made. Their proposal involved detoxification followed by a supportive regime within the local community. Mr Munby concedes that that proposal is equally not to be categorised as an assessment of the child, but in the exercise of its powers under the interim care order it is open to the local authority to volunteer something that the court did not have the jurisdiction to order. Mr Maskrey's submissions effectively demand the rejection of the distinction clearly drawn in Re B and in my opinion cannot succeed in this court. If section 38(6) confers jurisdiction on the court to impose any regime on the local authority pending and in preparation for the final hearing, the draftsman would not have confined the power to "the medical or psychiatric examination or other assessment of the child."

It is of course stressed by Mr Maskrey and Miss Selman that the judge heard evidence over the course of two full days and preferred the evidence of Miss Brown to that of Mr Larkin. However, I must express some reservation as to whether the issue required so much oral evidence. Ordinarily I would expect the issue to be decided on the reports and on submissions. Be that as it may, I am in no doubt that the judge reached the wrong conclusion on this factual issue. First I doubt that he correctly directed himself as to the law. Both his references to Re M and Re B at pages 4 and 6 reveal that he had understood that Holman J had ordered an admission to the Cassel Hospital on the basis that it provided assessment and that in Re B this court refused an admission to the Cassel Hospital on the basis that it provided therapy. Leaving aside that misunderstanding, perhaps more significant is his failure both to refer to all the guidance offered by Hobhouse LJ and to explain how the programme he imposed on the local authority fell on the permissible side of the boundary. These doubts are reinforced by his frequent references to either successful assessment or the failure of assessment when in the context he can only have meant successful treatment or the failure of treatment. For these reasons I would allow this appeal and delete paragraphs 2 and 3 of his order. Alternative directions for final hearing will have to be sought from the court below.

LORD JUSTICE AULD: I agree that the appeal should be allowed for the reasons given by my Lord. I add a few words. In Re C Lord Browne-Wilkinson, with whom all their Lordships agreed, at pages 501 to 502 gave the following guidance as to the court's use of the power in section 38(6) of the Children Act 1989. It should be given a broad purposive construction. Its purpose was to enable the court to obtain the information necessary for its own decision. It could include a joint assessment of the child and the parents, including their attitude and behaviour to the child. And it is directed to providing the court with the material which, in its view, is required to enable it to reach a proper decision at the final hearing of the application for a full care order.

No issue arose in that case as to the form of assessment needed. The question was whether there should be residential assessment, as sought by the parents, supported by the guardian ad litem and recommended by the local authority's social workers, or a care order with a view to adoption, as sought by the local authority.

It is plain from Lord Browne-Wilkinson's guidance that the essential purpose of an assessment order is investigative. It requires a determination of the facts and an assessment of them as to their present and potential implications for the future care of the child. It is to enable the court to determine within a relatively short time-frame whether it should in due course make a full care order and, if so, in what terms.

Depending on the circumstances, such an investigation may call for an assessment of matters just as they are. Often, perhaps more often, it may also call for an assessment of what they might be with treatment and/or other help to parents and/or the child.

If it were confined to an assessment of existing matters, without considering the possibility or lack of it for change that some short-term therapy might demonstrate, it would defeat the clear purpose of the provision as described by Lord Browne-Wilkinson. Where the court considers on the evidence before it that therapy might result in a change for the better for the child, the jurisdictional question is not whether the direction is for therapy or assessment, nor even whether in its content, as distinct from its duration, it is more one than the other. It is whether therapy in the short term may assist in assessing whether further therapy may produce a relevant change for the better, and thus be a useful guide to the court when considering the future of the child at the full care stage.

LORD JUSTICE SIMON BROWN: No direction can lawfully be given under section 38(6) of the Children Act 1989 unless it be "with regard to the medical or psychiatric examination or other assessment of the child" within the meaning of that phrase expounded by the House of Lords in Re C (a minor) (Interim care order: residential assessment) [1997] AC 489.

Unless, therefore, the programme proposed in the judge's direction under appeal in this case can properly be characterised as one for assessment there was no jurisdiction to make it. It was rightly accepted that a programme for assessment can encompass within it an element of therapy or treatment. If, however, the programme is essentially one for treatment rather than one for assessment it falls foul of the principle established by this court in Re B (Psychiatric Therapy for Parents) [1999] 1 FLR 701 and must be held to be outside the court's powers to order. I recognise, of course, that that principle will not always be easy to apply. The antithesis between assessment on the one hand and therapy and treatment on the other is at best an imperfect one. Essentially, however, as Thorpe LJ has explained, the court will be concerned to determine what is the primary purpose of the programme proposed and whether the element of therapy treatment can properly be regarded as merely ancillary to it. I agree with my Lords that the programme ordered here clearly falls outside the limits of any programme which as a matter of fact and degree could properly be characterised as one primarily designed for the purpose of assessment rather than treatment. The programme's therapeutic component is altogether too prominent, its length altogether too long. I too would allow this appeal, with the result proposed by Lord Justice Thorpe.

ORDER: Appeal allowed. Case remitted to Lincoln County Court for further directions. Leave to appeal refused. Legal aid assessment of the costs of the litigation friend and the mother.

(Order not part of approved judgment)