England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
(His Honour Judge Hargrove OBE QC)

		The Royal Courts of Justice The Strand London WC2A Wednesday 4 July 2001

Wednesday 4 July 2001

1. LORD JUSTICE THORPE: It seems that section 38(6) of the Children Act 1989 continues to give difficulties to judges who have to weigh expert advice that families require residential assessment. The family in this case was deemed suitable for a residential assessment as long ago as last autumn, but the development of the evidence of what sort of assessment was carried a long way further by a report from Dr Arnon Bentovim, which was dated 4 December 2000. His view was that the particular complexities of the case required an admission to a resource of ultimate expertise, namely the Cassel Hospital at Ham, Richmond.
2. The Cassel saw the family with a view to reaching a preliminary conclusion as to whether they were suitable for admission for assessment. A letter was written by Dr Roger Kennedy, the consultant psychotherapist to the Family Unit at the Cassel, to the parents' solicitors, dated 21 March. He helpfully arranged for a copy to go to Miss Anita Oram, the social worker in the case, and also to the very experienced guardian ad litem, Mr Stephen Pizzey. The guardian had word that Dr Kennedy's first impression of the family was that they were suitable, and on 20 March he rang a senior person in the local authority's structure, an assistant director, a Miss Bays. He warned her of the thrust of Dr Kennedy's opinion and pointed out that the financial cost of even a preliminary residential assessment would be significant, and accordingly it should be shared with health and education budgets. Three days later he telephoned again to speak to Miss Bays, and received a message from her secretary to the effect that the local authority would fight the proposal for admission to the Cassel. It is to be presumed that at the date of that conversation the letter from Dr Kennedy was at least in the possession of the local authority, even if it had not been read by Miss Bays.
3. The likelihood of a judicial hearing must then have been obvious to all, and on 27 April the parents' solicitors issued an application in the Tunbridge Wells County Court on Form C2. The application stated by paragraph 2:

"We are applying for an order pursuant to section 38(6) of the Children Act 1989 that a residential assessment take place at the Cassel Hospital. . ."

4. Under paragraph 4, headed "Your reasons for applying", they stated:

"We are making this application because Medway Council are unwilling to agree a residential placement at the Cassel due to the costs.

Medway Council have proposed two alternative Centres, neither of which it is felt would be able to offer the same degree of intensive therapy and expertise as has been offered by the Cassel.

The Court is therefore asked to determine which of the three proposed Centres would be appropriate for the assessment of parents and children to take place."

5. But there was no statement filed by the parents in support of that application and, perhaps unusually, the first statement in relation to this application was filed by Ms Anita Oram and dated 27 April, the date of issue of the application. By paragraph 1.1 she said:

"This statement is prepared to inform the Court and the relevant parties [of] the Local Authority's position around the issue of the family attending a residential assessment at the Cassel".

6. In paragraph 1.3, she said:

"The Local Authority has now received the initial assessment report. . . prepared by Dr Kennedy, that states that they may be able to elicit some change within the family and wish to offer the family a 6-8 week residential assessment with intensive therapy to see if they can work with the family."

7. Paragraph 1.4 continued:

"The Local Authority is now in agreement to offering the family a residential assessment, but would like to be able to consider other alternatives, which are local to Medway."

8. On the date that that statement was filed there was an appointment before the court attended by the solicitor for the parents, the solicitor for the local authority and the solicitor for the guardian ad litem. In view of the fact that the local authority had filed their evidence in opposition first, it is understandable that the only directions made by the district judge were: (1) that the parents file and serve their evidence by 11 May; and (2) that the guardian file and serve a further report by Dr Bentovim by the same date.
9. The parents duly complied with the direction, the evidence coming largely from the mother who, by her statement of 11 May, made it plain that the family had a strong preference for the Cassel, having attended for a preliminary assessment and having been impressed by that experience. She made the point that, while she was pleased that the local authority accepted that there should be a residential assessment of the family, the first that she had heard of the alternative units proposed by the local authority was when she received Miss Oram's statement at the directions appointment on 27 April. There was, of course, no provision in the district judge's order for the local authority to file any evidence in reply.
10. The guardian ad litem equally fulfilled the court's direction by filing a further report of Dr Arnon Bentovim dated 8 May. He in that report explained quite carefully why the Cassel was the appropriate referral, despite the views put forward by Anita Oram in her statement. He made the point that the alternatives advanced by the local authority, dependent on external, bought-in therapeutic help, could not begin to replicate the quality and extensiveness of the observations which can be provided at the Cassel Hospital. He further said that the Cassel Hospital was his preference because of the intensity of the therapeutic work that is offered there during the assessment process and subsequently. He noted the funding implications of a referral to the Cassel, but pointed out that that was an inevitable consequence of the quality and extensiveness of the work that they offer, which is unique in the United Kingdom. He concluded that any alternative to the Cassel would not be an equivalent service to the family's needs and would not assist the court in making the assessment that is required through a residential placement.
11. This seemingly completed the evidence that would go before the judge at the one-day hearing that the district judge had fixed for 24 May. But no, the local authority filed a further statement from Miss Oram, which is dated 18 May. Although she does not refer to the other statements earlier filed, she says in her first substantive paragraph:

"This Local Authority, for a number of reasons opposes this application. We do not feel it is in the best interests of the children, as we believe the main focus of the Cassell's work to be therapy for the parents and that the potential for the parents to improve their parenting is poor, and in any event, would be outside any acceptable timeframe to meet their children's overriding need for permanency and security.

In addition, the costs of the Cassell Hospital are incredibly high and this Authority feels it would be helpful for the court, in considering the application, to have detailed information about the budgetary considerations and implications for the Authority if the application were to be upheld."

12. She herself did not in her statement proffer any such information, and it must have come as some surprise to the other parties to the issue to receive at the eleventh hour a statement dated 22 May from Mr Dixon. That statement explains that he was at the time the Acting Service Manager for the Children and Family's Division of the council. He set out the budgetary position of the council and the costs of the Cassel Hospital. He said that the cost of a six to eight week assessment would range from £54,000 to £69,000. He said that, by contrast, the cost of a twelve week assessment at Fegans (the alternative local resource) would be only £24,000. In summary, he said that the council as a unitary authority was functioning within very tight budgetary constraints and that the uncommitted money from the public and voluntary budget was at that date £71,000.
13. At the hearing on 24 May all parties were represented by counsel. Mr Lyon, who has represented the local authority throughout, was fully expecting that Mr Dixon would be available to give oral evidence and to be cross-examined on his statement. To his surprise, Mr Dixon was not available at court. When Mr Lyon sought some alternative representative of the local authority, preferably senior to Mr Dixon, he was told that there was no one available.
14. He was also approached by Miss Butler for the guardian ad litem. She, quite naturally, wanted to know what the local authority had done in response to Mr Pizzey's telephone conversation of 20 March urging the local authority to seek to share the cost of a Cassel referral with health and education budgets. Mr Lyon informed her, on instructions, that there had been two meetings at which the request for shared funding had been considered and refused. The first meeting had considered Dr Arnon Bentovim's report of December, and the second meeting had considered his report of 8 May. Miss Butler called the guardian to give evidence and we have a transcript of what he had to say. His exchanges with Mr Lyon demonstrated that, whatever meetings there had been to consider shared funding, there plainly had not been a meeting of the relevant group since the receipt of Dr Bentovim's letter of 8 May. But even more significant, in my judgment, was the evidence given by the guardian at the conclusion of his cross-examination. Mr Lyon put to him this question:

"Are you saying that, if the court says no to the Cassel, we should not bother with Fegans?

A. Yes, I have said that to your Honour, that is my view.

Q. . . . So your view in black and white terms to this court is that it is the Cassel or nothing?

A. That is correct, your Honour."

15. The judge was referred to authority. Seemingly he was referred to three cases, Re M [1988] 2 FLR 371; Re B [1999] 1 FLR 701; and Re D [1999] 2 FLR 632.
16. In the course of his judgment His Honour Judge Bernard Hargrove QC recorded at paragraph 7 that it was agreed on all sides that there should be a residential assessment. He continued: ". . . there are two possible sites. . . One is at the Cassel Hospital. . . and the other is at Fegans." He recorded the evidence of Dr Bentovim and Dr Kennedy recommending the Cassel. He then summarised the local authority's case. He said:

"First of all, it is said that what is being offered in the package is therapy; it is not the assessment. What is more, most of the therapy is in relation to the parents and not in relation to the children."

17. He then returned to the expert evidence and summarised Dr Bentovim to the effect that, whilst Fegans had many virtues, it was not an appropriate referral for the complex issues raised in the present case. Indeed, Dr Bentovim had pointed out that on a referral to the Cassel, if there was not to be a positive outcome the placement would come to a speedy end. He then considered the cases and particularly had regard to a passage in the judgment of Hobhouse LJ in the case of Re B, the reference to which I have already given. In relation to this sentence in the judgment of Hobhouse LJ: "If the substance of the matter is assessment under controlled circumstances, then it does fall within the scope of the subsection", the judge said:

"[That sentence] fits almost exactly into what is being recommended here. What is being sought is that, by the use of various devices, with the children being present with the parents, then an assessment can be made of how those children can be cared for by these parents, if at all. That is the assessment, and in my view it comes squarely within section 38(6)."

18. He then made the point that, whilst he accepted Dr Bentovim's evidence on the medical aspects, he could not accept with equal authority Dr Bentovim's views on the funding issues. He considered the figures that were to be found in the statement of Mr Dixon and he considered an observation to be found in the judgment of Holman J in Re M to the effect that the prospects of success should be markedly better than even before a referral to the Cassel. The guardian had put the prospects in this case as no better than even, and the judge in his concluding paragraph said that with a heavy heart he had to conclude that the local authority were entitled to take the decision that they would fund Fegans but not the Cassel.
19. He, quite rightly in my judgment, gave permission to appeal and notices were received in this court in the middle of June. A direction was made at once for the case to be heard in this court on this day. The parents filed their skeleton argument by Mrs Tapson, who has represented them throughout. She made comprehensive submissions to the effect that the judge, whilst right in classifying the purpose of the referral as assessment, had reached the wrong conclusion on the funding issue. A skeleton argument was filed by Mr Lyon on 3 July in which he very responsibly and honestly recorded that the information that he had given to the council and to the court on 24 May, to the effect that shared funding had been twice considered and twice rejected, was quite simply wrong. Mr Lyon in his skeleton says:

"All parties were advised that the issue had twice been considered in March and April 2001, and rejected on the grounds that it was too expensive, and the prospects of success were not sufficiently great. That information was passed on to the Judge and relied upon. . . in his judgment.

It now appears that this information was inaccurate, and that the possibility of joint funding has never been considered, although it is understood that a clinician's panel has been convened to consider the issue and will report by 13th July.

It is accepted by the Respondents that the decision reached by the Learned Judge was reached on the basis of misleading information, and to that extent the appeal must succeed. The issue therefore arises as to what consequences should flow".

20. Miss Butler at the invitation of the court has also filed a skeleton argument and has appeared today. Although her task has been comparatively light, she has been of considerable assistance in placing before the court factual information as to the efforts made by the guardian ad litem to concentrate the local authority's mind on the relevant issue, namely the sharing of the cost amongst the other relevant potential funders.
21. Although the case has distilled itself today into pure issues of money, I think it is worth repeating what has been said in a number of decisions in relation to this difficult subsection of the statute. Let no one forget that the leading judgment in this field is the judgment of the House of Lords in Re C [1997] AC at 489. By the judgment of the House, the power of the court to order residential assessments of parents and children was plainly established. The potential difficulties over funding were, of course, recognised by the House and 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 that area. So it was perfectly proper of the local authority to bring to the court's attention the impact of a substantial spend at the Cassel on this family on its capacity to deliver services to other children within the area.
22. What I think was never open to the local authority was the argument that a referral to the Cassel fell without the court's jurisdiction, as analysed in the speeches of their Lordships and as further considered by this court in the two decisions of Re B and Re D to which I have referred. Although I repeat myself, it is apparently necessary to remind professionals of what I said in Re B in relation to the Cassel Hospital. It is to be found at page 709A:

"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."

23. That passage, if not expressly, certainly by implication made it plain to this and every other local authority that it was well within the jurisdiction of a judge to order a residential assessment at the Cassel.
24. Furthermore, Holman J had considered a referral to the Cassel in his earlier case of Re M [1998] 2 FLR at 371. He made it plain in that decision that the preliminary assessment at the Cassel over a period of six to eight weeks was within the court's jurisdiction, whilst he expressed reservations as to whether, in the event that that assessment resulted in a positive conclusion, there would be equal jurisdiction for the court to order a full residential stay. In the later case of Re D, I expressly put a question park against that view. It seems to me that it is difficult to contend that the essential character of the referral is lost at the conclusion of the first period of assessment. But that point does not arise in the present appeal.
25. It is also to be emphasised that the judgment of Hobhouse LJ, upon which the judge in this case relied, sets the hurdle against the applicant as high as it has ever been set and this court in Re D, particularly in the passage at page 638 and 639, sought to put that approach in context. In particular, and with relevance to the present case, it was pointed out that the purpose of a residential assessment may often be to assess the parents' capacity to respond to treatment intended 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. That is very much this class of case.
26. It remains to deal with the resistance advanced by Mr Lyon today to an immediate order for a residential assessment to the Cassel. He has quite rightly abandoned any argument but the money argument. He continues to say that it would be quite unreasonable for a court to impose upon a unitary authority an application to meet a bill ranging between £54-69,000 when its public and voluntary budget stands in credit at only £71,000. That is an argument advanced by Mr Lyon largely on instruction, although with some slender foundation in the statement of 22 May prepared by Mr Dixon.
27. It seems to me to be necessary to emphasise that this local authority knew from before the issue of this application that their primary ground of resistance was funding. They knew, or ought to have known, that any resistance on the ground that the Cassel was not the appropriate medical referral was hopeless. To begin with, all the mental health professionals spoke with one voice; the guardian ad litem was of precisely the same opinion; the local authority had no expert evidence to the contrary. The judge accepted the expert evidence in the medical field of Dr Bentovim. For the authority, the argument was simply not open to run. So, in reality and properly advised, their only ground for resisting this application was finance.
28. The outcome for the parents is, as I have already sought to point out, devastating. Quite apart from the application of the Human Rights Convention, simply applying the golden rules of natural justice that always applied to proceedings in the family justice system, if an applicant for relief has to face and defeat opposition, the applicant is entitled to see the case, in detail and well in advance of the proceedings, to give the applicant a chance to prepare their case at the vital hearing. Mr Dixon's evidence was very general, it was filed far too late, and it was not open to cross-examination.
29. The vital evidence was, of course, the evidence that the guardian had sought to bring out by his warning conversation to the local authority of 20 March. It was incumbent upon the local authority to show that they had made responsible efforts to obtain contribution funding from health and education and that those responsible efforts had been defeated. Not only was there not a word of evidence put before the court, but such statements as were made from the Bar were fundamentally and dangerously misleading. That is no criticism of Mr Lyon, who has acted throughout with complete propriety. But local authorities have to understand that if they want to persuade a judge that a direction for residential assessment would involve a disproportionate expenditure on a single family, they must present at the fixture a case that has been competently prepared in accordance with the ordinary rules and practices relating to the filing of statements and the conduct of trials.
30. Even now this court does not know whether, at a later date this month, health and education budgets will agree to share the cost of this referral. Even now the case that is put forward on instructions by Mr Lyon is the disaster scenario, which may well be averted by responsible efforts to obtain contribution. I only hope, from the local authority's perspective, that their prospects of obtaining that contribution have not been damaged or prejudiced by the manner in which they have sought contribution to date.
31. In another case, where the evidence is properly presented, where the judge is indeed persuaded as a matter of fact that the whole burden will fall on the local authority and that it would represent a disproportionate spending on a single family, undoubtedly it is likely that the assessment will be refused. But this is not such a case. The only evidence before the court is quite insufficient to begin to discharge the burden on the local authority of proving a money defence to an application for a residential assessment which was proved necessary by a very high level of mental health expertise.
32. So for all those reasons I would have no hesitation at all in allowing this appeal and ordering the assessment sought by the application of 27 April.
33. THE PRESIDENT: I agree with the judgment of Lord Justice Thorpe that this appeal should be allowed. There was an agreement before the judge that this family should have a residential assessment. The mental health experts and the guardian ad litem supported the Cassel Hospital as the most suitable place for the multi-faceted problems of this family. No mental health expert evidence was provided in support of the advantages of any alternative placement.
34. Before the judge the local authority objected to the Cassel Hospital on two grounds. One was that it was not suitable and, quite rightly, Mr Lyon on behalf of the local authority has not pursued that on appeal for the obvious reasons that my Lord has already given. Secondly, the local authority said to the judge that the Cassel Hospital was too expensive. It is considerably more expensive than the alternative placement suggested by the local authority. That is a well-regarded institution with residential facilities, but entirely lacking in the specialist facilities offered by the Cassel Hospital. It was going to be necessary to buy in from outside the necessary additional help which would come in as required. For some astonishing reason the local authority did not effectively seek the assistance of the health authority for joint funding of a residential placement although, in error, they led the judge to believe that such an application had been made to the health authority and that it had been refused. The guardian ad litem had a very strong view on the alternative placement that it was not appropriate and should not be taken up. On a question asked directly on that matter, the answer was given as my Lord has set out in his judgment. Consequently the evidence of the guardian, which in cases such as this is crucial, supported the parents that the residential assessment was needed and it was to be held at the Cassel Hospital or there was not a suitable institution for residential assessment in this case.
35. The evidence provided on costs by the local authority was one letter provided two days before the hearing, with no oral evidence to back it up and no opportunity either for the parents or for the guardian to test such evidence by way of the usual form in the English courts of oral cross-examination. Nonetheless, that written evidence, which as I said was untested, was determinative of the outcome of the application. With considerable regret, the judge refused the parents' application for a residential assessment at the Cassel Hospital and he hoped that the alternative placement would meet the requirements. That is, in my judgment, a very unsatisfactory way for a local authority to provide evidence on a crucial issue; indeed, as it turned out, the only effective issue before the court.
36. Clearly cost is a very important consideration. We all know, and we know very well, that the local authority social services budget has to be stretched to cover all necessary causes and it is inadequate for many of the calls placed upon it. Such a situation is a very important factor for the court to take into account in considering cost as one, but not the only, factor in relation to the outcome of an application for a residential assessment. I respectfully endorse, however, the point made by my Lord as to where there is relevant, cogent evidence provided by a local authority, it would place the court in considerable difficulties in going against it in a particular case.
37. Where the only ground of opposition to a residential assessment is cost and, in this case, the local authority is prepared to fund what appears to be an inadequate assessment for this family, it is crucial that there should be evidence before the court to assess the approach of the local authority to the question of funding. The local authority, like any other party, must prove their case by evidence which can be tested and evaluated by the judge. They play in these care cases, of course, a crucial role but they are not in a special position. They do have to prove their case. It cannot be just, whether on domestic law or, as my Lord has said, on the principles of natural justice dear to the hearts of all courts (particularly dear perhaps to the heart of family courts), or under the Human Rights Act, article 6 and article 8, that this family should have had their chance to have an assessment at the Cassel refused on the basis of Mr Dixon's unchallenged and untested statement, and in the absence of any evidence as to the possibility of shared funding with the health authority, that question, as my Lord has said, not yet having been finally considered by the health authority who are meeting later this month.
38. The specialist and expensive help offered by the Cassel Hospital is not needed and is not appropriate in the majority of difficult cases. But in the really difficult case, of which the present case is an extremely good example, the Cassel Hospital has something enormously valuable to give to a family for the benefit of the children who are the concern of the local authority and the concern of the courts. That, as my Lord has already set out, is a unique resource provided by the Cassel for specialist problems in unusual families. I agree with him that in this case, on the evidence available to the judge, without taking into account the additional evidence that has been presented to us in a rather piecemeal way without any request for by way of application for permission to adduce additional evidence – we have looked at it but it really is not necessary to carry the case on – it is appropriate that this family should receive the benefit of a residential assessment at the Cassel Hospital.
39. I do hope that this family will make this placement work and that they will whole-heartedly support the unique opportunity that has been given to them. Because, let them understand very well, after this Court of Appeal hearing no other chance will be available to them in the future.
40. Therefore, for the reasons that my Lord has given and I have given, this appeal is allowed and we direct a residential assessment at the Cassel Hospital at Richmond.
ORDER: Appeal allowed. Residential assessment directed at Cassel Hospital. No order for costs save detailed assessment for those who have received public funding. (Order not part of approved judgment)