England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(Her Honour Judge Norrie)

		The Royal Courts of Justice The Strand London WC2A Wednesday 1 August 2001

Wednesday 1 August 2001

1. LORD JUSTICE THORPE: The single point in this appeal is as to whether or not Judge Norrie had jurisdiction under section 38(6) of the Children Act to order an assessment of the parents by an assessment agency called Seafields. It is unnecessary to explore the background in any great detail for the purposes of this judgment. Suffice it to say that the parents had five children, the first born in 1987 and the last ten years later.
2. This appeal is concerned only with the younger two, J who is 7 and Z who is four. The parents found family life overwhelming, with the consequence that in January 2000 four of the children were voluntarily accommodated. One of those children, aged I think only nine at the time, with what seems to be unusually mature perception and description, said that life at home was "like a mad house, chaotic and idiotic". What was not in doubt was the parents' attachment to the children and the children's attachment to the parents.
3. Proceedings to determine the future of the children were initiated by the local authority, who had applied for care orders on 9 December 1999. The guardian ad litem in the proceedings instructed Sylvia Duncan, a psychologist, to make a forensic assessment and to give her opinion to the guardian and to the court. A first report was delivered in July 2000, a second in December 2000 and her final report on 13 February 2001. That report, and indeed her oral evidence, assumed a prominent status at what was designed to be the final hearing of the local authority's care application on 25 May before Judge Norrie. Her judgment records, and I cite from page 1:

"[The local authority's] plan for the two younger children is permanent removal from their family to an adoptive placement, with contact twice a year to their parents, and sibling contact four times a year, two of which are to be shared with the parents' contact. The Local Authority plan for the younger children is not just opposed by the parents and the other children, but also by the children's Guardian, informed and assisted by Sylvia Duncan. . . who has been continually assessing the family for twelve months, having been first involved in the summer of 2000."

4. As an aside, it does at once strike as almost obvious that the local authority would have great difficulty in implementing such a plan when not only the parents but also the guardian were firmly opposed to the concept of adoption. Obviously the local authority would have difficulty in obtaining judicial dispensation for the parents' consent when their objection was so firmly supported.
5. In this same judgment, the judge cited the final report of Sylvia Duncan at length. I select one of the citations from page 18 of the judgment which runs as follows:

"I am most concerned about Z and J, given their ages and the need for some sort of security as soon as possible. They cannot remain where they are long-term and will need to move somewhere. I would recommend that early efforts be made to facilitate the care of these two girls by their parents through intensive parenting work but with increased contact home. Ideally, parenting work undertaken by a professional worker would include the identified link family whose role it would be to help perpetuate the work and help to support the parents in the task. If it looked as if the parents really could not succeed in gradually assuming the care of the girls, then steps should be taken in my view to find a permanent alternative home for them in keeping with their need for long term security before further damage is done. I would put a six month deadline on this work."

6. The judge concluded thus, at page 23 of her judgment:

"I find that the time has not yet been reached where I could say that I am judicially satisfied that the welfare of the two younger children demands the displacement of parental responsibility. I think you will find that a plan for adoption of these children is so hung around with difficulties that that should not be undertaken until every possible avenue has been explored.

The situation therefore is that I am not going to make a decision about J and Z, and would ask the local authority to re-consider their Care Plan."

7. On the final page she observed:

"The Local Authority have a duty to promote contact between the children and their parents, but again, all are agreed that if the plan to see whether the parents can undertake the primary care of J and Z goes forward, then that plan takes precedence."

8. At the conclusion of judgment, it was understood that the local authority would convene a meeting on 30 May to consider the impasse. On 1 June a letter was sent, certainly to the court and presumably to the other parties, communicating the local authority's refusal to reconsider the care plan. Accordingly the judge held a directions appointment on 6 June, in the course of which she gave the parents' solicitors permission to disclose to Seafields the papers in the case. Seafields responded very quickly on 14 June. It is necessary to cite two comparatively long passages from their letter. The first is the main paragraph on page 1, which is as follows:

"There are clearly a number of major concerns that relate to [the parents'] capacity to care for and protect J and Z - in particular, their risk of abuse, neglect [the parents'] use of alcohol and [the father's] criminal offences. I am mindful of Her Honour Judge Norrie's comments within her unapproved first draft and also Sylvia Duncan's own findings. Given the history and evidence surrounding the case I am confident Seafields would be able to facilitate a programme to explore the potential for the rehabilitation of J and Z to their parents' care. The design of such a programme would provide protection for the children; parenting skills training as an integral part of our observation and assessment and intensive couple work designed and conducted for the purposes of ascertaining a broader view of [the parents] parenting abilities, beliefs and values, and the identification of any specific implications or concerns that may arise and that may have an immediate bearing on the direction or otherwise of the assessment."

9. The next citation comes from the following page and it comprises the second and third paragraphs. They read as follows:

"Seafields would be prepared to work for the suggested six months. However, my own suggestion to you is that we review progress monthly. Our experience suggests that we are likely to be in a position where recommendations concerning the children's longer term care are likely to be possible prior to the proposed six month period.

The actual nature of the assessment process means that continual review, monitoring and flexibility is essential so that our agreed targets and instructions are able to be met. Assessment is an organic process and informed assessment requires the capacity to respond to evolving priorities as and when these reveal themselves. Given that we have yet to receive a full letter of instruction our initial readings of the Court bundle suggest your priorities would include:

* [The parents'] ability to provide a safe and nurturing home for J and Z

* [The parents'] ability to place the needs of J and Z before their own

* [The parents'] ability to acknowledge and accept the Local authority's concerns regarding the events that led to the removal from their care of their five children

* [The parents'] ability to work in co-operation with all the relevant agencies including the assessment programme led by Seafields."

10. The judge held a hearing on 26 June, when submissions were made in support of and against the order sought. At the end of that hearing she made the order but did not give her reasons until 2 July. Her reasons are full but I need only take a few brief citations to convey the essential foundation. On page 6 she said:

"I have no doubt that during the course of the next six months or so although the parents will receive significant support and detailed advice the focus and motive of this period of time is, as I have already indicated, to test and assess whether these parents can resume a significant amount of the parenting of J and Z."

11. The second citation from the same page is as follows:

"Then I have to consider whether the assessment is necessary to enable me to properly discharge my function in deciding whether or not to make a care order and is it directed to providing me with material which in my view is required in order for me to make a proper decision and the simple answer to that is simply 'yes'."

12. Finally, on the last page she said:

"As to the fact that it is argued that there have already been many assessments of these parents, I accept there have but these have not been of sufficient depth and aimed at specific areas which would enable me to make an informed decision".

13. Mr Posnansky QC, who has argued this appeal on behalf of the local authority with conspicuous ability, in his skeleton argument advances the primary submission in paragraph 1.3:

"The programme directed by the judge was substantially therapeutic, not primarily an assessment."

14. At paragraph 3.9 he amplifies that by saying:

"The programme outlined by Seafields was in substance one of treatment and advice to the parents. The following factors make this clear."

15. Then he sets out these considerations. There had been multiple and substantial assessments; no additional assessment was necessary. Accordingly the programme manifestly had therapy as its primary aim, albeit with periodic reviews. Secondly, he says no further assessment was thought necessary, or had been proposed, at what was intended to be the much-delayed final hearing in May. Thirdly, he says that although the words and phrases in the Seafields letter were neither conclusive nor consistent, read as a whole it was clear that parenting skills, training and intensive couple work were the substance of the programme.
16. His second and allied submission was that the family had been assessed extensively over a long period and no additional assessment was necessary or reasonably required. In support of that, in paragraphs 3.2 and 3.3 of his skeleton he recorded comprehensively the work that had been done since April 1999 by various professionals, including the manager of a local family centre, a family care worker, a specialist social worker, Sylvia Duncan herself, the guardian ad litem, a psychiatrist, another psychologist, a marital therapist and a unit offering treatment for alcohol abuse.
17. For the guardian ad litem Miss Budden submitted that there had in fact been many prior references to section 38(6) in argument both at and prior to the May hearing. Secondly, she submitted that this was an organic development from Sylvia Duncan's February report. If the local authority failed or declined to provide the essential social worker assessment of the parents' capacity to meet minimum parenting standards, then that assessment must be contracted out to some appropriately qualified agency. Finally she submitted that the welfare check list required the court to have regard to, first: "how capable each of the child's parents is of meeting his needs". She said that it was precisely such an assessment that was required in this case for both J and Z.
18. Mr Coates, following Miss Budden, concentrated on the history of the various past assessments to demonstrate why he submitted they were individually and cumulatively unsatisfactory.
19. The extent of the court's jurisdiction to make orders under section 38(6) has been settled by the decision of the House of Lords in Re C (Minor) (Interim care order: residential assessment) [1977] AC 489 and by two subsequent decisions of this court, Re B (Psychiatric therapy for parents) [1999] 1 FLR 701 and Re D (Jurisdiction: Programme of assessment or therapy) [1999] 2 FLR 632. From these authorities it is clear that the judge in the court of trial must be wary of labels and search for the purpose and relevance of the proposal both in the context of the case as it has developed and also in the context of the issues that remain to be decided. In some cases it may be difficult to judge whether an extensive residential admission is primarily for the purposes of treatment or assessment. That problem this court considered in the case of Re D and between 638E and 639C I endeavoured to define the boundary for such cases.
20. But here we are only concerned with a non-residential social work assessment of the parents' ability to contain chaos and provide a stable and secure home for the two youngest children, the three older children having been committed to the local authority's care. I am quite satisfied that this was not a strategy in a developing battle of wills between the judge and the local authority. Nor was it some sort of rabbit magicked out of the hat on receipt of the decision letter of 1 June. This case is in my opinion well covered by the passage in the speech of Lord Browne-Wilkinson in the case of in Re C, to be found at page 501 just about G when he said:

"The purpose of subsection (6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection 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."

21. In my judgment Judge Norrie, fully supported by the guardian ad litem, was manifestly entitled to make the order which she did. I would dismiss this appeal.
22. MR JUSTICE WILSON-SMITH:I agree.
ORDER: Application for permission to appeal allowed. Appeal dismissed. Detailed assessment of the 1st and 2nd Respondents' costs. (Order not part of approved judgment)