COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Principal Registry of the Family Division
Her Honour Judge Hughes QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LADY JUSTICE BLACK
|- and -
|The London Borough of Hammersmith and Fulham
S (by a Children's Guardian)
Christopher Poole (instructed by The London Borough of Hammersmith and Fulham) for the First Respondent
Hearing dates : 22 June2011
Crown Copyright ©
Sir Nicholas Wall P:
"Although it is obviously difficult to appeal a case management decision as this is, I am persuaded to give permission mainly because (1) without a favourable assessment this child is likely to be removed from Mother permanently and (2) given that she has made some (but maybe not enough) change, it is arguably not fair to snuff out the only chances of this child remaining within the family."
The judge's case management
The judge's judgment
"The (appellant) indicated that she intended to seek a ruling pursuant to section 38(6) that she should have a residential assessment of her ability to care for (S). I was told that a preliminary decision with regard to the suitability of a parent for a residential assessment can be sought from the Cassell (sic) Hospital at no cost to any party. I suggested before this was embarked upon further professional advice should be sought……"
"In their oral evidence both (the psychologist and the psychiatrist) accepted that (the appellant) had a considerable way further to go in her psychotherapy and results may not become clear for a further 18 to 24 months. (The psychiatrist) said that it would be most unlikely for (the appellant) to finish the residential assessment and not need further work."
"The (appellant) has been tested and failed previous residential assessments many years ago now. That is not in my judgment determinative or indeed a fact to which I give much weight. The circumstances might indeed be very different on this occasion. But the reason I refuse the viability assessment arises entirely our of (the psychiatrist's) assessment of (the appellant), that she has in reality made little progress in her psychotherapy and took time out of it quite impulsively when she made the trip to Jamaica in the late autumn last year. She (the psychiatrist) said there are too many unknowns and it would take several years to know if the therapy had been successful and this would not be compatible with S's needs. She talked of the (appellant) having made little progress to date. She said: "In my experience people with this degree of difficulty take a long time to work through them: I have never met anyone who has got over them in a short space of time." The (appellant) has a long way to go and until the progress is made she would be most unlikely to be able to care for S….. "
"My concern is with the welfare of the child, S. When I balance the need to be brought up safely from birth if possible or as soon thereafter if not by one's mother who is emotionally available I realise that is not this case and nor is it likely that the (appellant) will be totally available at the earliest in 18 months but more likely in 2 years from now and in my judgment S simply cannot wait that long. I regard it as pointless to order an interim viability assessment in circumstances where the child cannot wait for the outcome to which it may lead within a realistic timescale Far better for the mother that she continue with her existing psychotherapy unburdened with the care of a very small baby, much in the best interest of this child that she is not treated as an experiment which does not have any benefit for her. (Emphasis supplied)"
The attack on the judgment
"In summary, it is submitted that the refusal to permit the Mother to seek a viability assessment has had the effect of preventing the Mother from presenting any significant evidence in answer to the Local Authority's application for a care order. Given the age of the child and the potential lack of kinship carers, a plan for adoption is likely. The Mother's only hope of defending the application rested on being able to demonstrate to the court the changes she has made since she was last assessed in care proceedings (in 2004) and in the light of the individual and group therapeutic sessions she has been receiving since 2009 and 2010, respectively. A viability assessment, of no cost to the parties, was the first step in the Mother preparing a case in answer to that of the Authority's. The effect of the learned Judge's decision is that her application to prepare such a defence has been summarily dismissed. She has no prospect, without seeking a viability (and if appropriate, residential) assessment, of opposing the Authority's application and, accordingly, of receiving a fair trial."
Court case management
THE MAIN PRINCIPLES
[3.1] The main principles underlying court case management and the means of the Court furthering the overriding objective in public law proceedings are:(1) the timetable for the child: each case will have a timetable for the proceedings set by the court in accordance with the timetable for the child;(2) judicial continuity: each case will be allocated to one or not more than two case management judges (in the case of magistrates' courts, case managers), who will be responsible for every case management stage in the proceedings through to the final hearing and, in relation to the High Court or county court, one of whom may be – and where possible should be – the judge who will conduct the final hearing;(3) main case management tools: each case will be managed by the court by using the appropriate main case management tools;(4) active case management: each case will be actively case managed by the court with a view at all times to furthering the overriding objective;(5) Consistency each case will, so far as compatible with the overriding objective, be managed in a consistent way and using the standardised steps provided for in this Direction.
THE MAIN CASE MANAGEMENT TOOLS
The Timetable for the Child
[3.2] The timetable for the child is defined by the rules as the timetable set by the court in accordance with its duties under ss 1 and 32 of the 1989 Act and shall:
(1) take into account dates of the significant steps in the life of the child who is the subject of the proceedings; and
(2) be appropriate for that child. The court will set the timetable for the proceedings in accordance with the timetable for the child and review this timetable regularly. Where adjustments are made to the timetable for the child, the timetable for the proceedings will have to be reviewed. The timetable for the child is to be considered at every stage of the proceedings andwhenever the court is asked to make directions whether at a hearing or otherwise.
[3.3]. The steps in the child's life which are to be taken into account by the court when setting the timetable for the child include not only legal steps but also social, care, health and education steps.
[3.4] Examples of the dates the court will record and take into account when setting the timetable for the child are the dates of:
(1) any formal review by the local authority of the case of a looked-after child (within the meaning of s 22(1) of the 1989 Act);
(2) the child taking up a place at a new school;
(3) any review by the local authority of any statement of the child's special educational needs;
(4) any assessment by a paediatrician or other specialist;
(5) the outcome of any review of local authority plans for the child, for example, any plans for permanence through adoption, special guardianship or placement with parents or relatives;
(6) any change or proposed change of the child's placement.
[3.5] Due regard should be paid to the timetable for the child to ensure that the court remains child-focused throughout the progress of public law proceedings and that any procedural steps proposed under the Public Law Outline are considered in the context of significant events in the child's life.
[3.6] The applicant is required to provide the information needed about the significant steps in the child's life in the application form and to update this information regularly taking into account information received from others involved in the child's life such as other parties, members of the child's family, the person who is caring for the child, the children's guardian and the child's key social worker.
[3.7] Before setting the timetable for the proceedings the factors which the court will consider will include the need to give effect to the overriding objective and the timescales in the Public Law Outline by which the steps in the Outline are to be taken. Where possible, the timetable for the proceedings should be in line with those timescales. However, there will be cases where the significant steps in the child's life demand that the steps in the proceedings be taken at times which are outside the timescales set out in the Outline. In those cases the timetable for the proceedings may not adhere to one or more of the timescales set out in the Outline
[3.8] Where more than one child is the subject of the proceedings, the court should consider and may set a timetable for the child for each child. The children may not all have the same timetable, and the court will consider the appropriate progress of the proceedings in relation to each child
[3.9] Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should, where practicable, take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the timetable for the child.
The judge's final sentence
Lord Justice Moore-Bick
Lady Justice Black
"Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment."
"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."
"Therefore the context in which s 38(6) has to be considered is this. The child is 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 s 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 a final care order. It is the practice of the courts to require the local authority seeking a final care order to put forward a care plan for the court to consider in exercising such discretion. 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"
"The purpose of s 38(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."
And at page 9 he said that the court has jurisdiction:
"to order or prohibit any assessment which involves the participation of the child and is directed to providing the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order."
" The purpose of these provisions is, therefore, not only to enable the court to obtain the information it needs, but also to enable the court to control the information-gathering activities of others. But the emphasis is always on obtaining information. This is clear from the use of the words 'examination' and 'other assessment'. If the framers of the 1989 Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority."
" In short, what is directed under s 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the 1989 Act with the minimum of delay."
" …. if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child's guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring. No one denies that this was a particularly complex and difficult case in which expert psychological assessment of the risks was essential. But that is not always so."
"….That may be so, but the proposition that the refusal of the court to make that direction, or the unwillingness of the council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie's or the parents' Art 8 rights cannot, in my opinion, be accepted. There is no Art 8 right to be made a better parent at public expense. "
" I am not for one moment seeking to lay down any general guidelines for the circumstances in which the court should or should not order assessments under s 38(6). The courts must give the subsection a purposive construction and apply the principles set out in Re C and Re G to the facts of the cases before them. But what is equally important is that the hearing of the proceedings should be fair (or, to put the matter in the language of the European Convention, Art 6 compliant) and that the court should have before it all the relevant evidence necessary for the decision.
 I am left with the clear feeling, having listened to the argument in the instant case, that any final hearing which followed a denial to the parents of M of the opportunity to take part in a residential assessment of the child would be unfair. I say that for a number of reasons. First, the parents have plainly been written off by the local authority as carers for either child. I have cited the relevant passage from the core assessment in para , above. Although the guardian is at pains to say that her evidence on the s 38(6) issue is not determinative of her final investigation, the clear impression left by her evidence is that the parents are unlikely to be able to care for either M or SA. Both the local authority and the guardian say that the judge does not need the evidence from a s 38(6) assessment. Both say – in effect – that although this mother has done everything expected of her in contact, her history is such that there is no point in any further assessment. The plain inference is that she is incapable of caring for M and SA: that is the end of the matter, and the court should therefore not permit any further expenditure of public funds on a further assessment.
 There will, in my judgment, of course, be cases in which to order an assessment under s 38(6) of the 1989 Act will be a waste of time and of public funds. Sadly, it is not difficult to provide examples. Parents who have been found grievously to have injured one or more of their children and have another whilst continuing to deny causing the injuries or without any acknowledgement of their responsibility for the injuries can hardly expect to obtain an assessment of their new child under s 38(6). A woman who has a child or children by a convicted paedophile whom she does not acknowledge to be a danger of her children is in the same position. Child protection is a vital ingredient in any proceedings under the 1989 Act.
 Accordingly, if the professional evidence in the instant case was unanimous that a s 38(6) assessment would serve no purpose, it would be unlikely that the judge could have been criticised for refusing to order one. But that is patently not the case. The consultant clinical psychologist brought in to advise the court (inter alia) on this very issue advises, in strong terms, that a residential assessment of M, the mother and the father is not merely desirable: he strongly recommends it. In my judgment, that is a powerful pointer to the propriety of such an order.
 That pointer is, in my judgment, however, immeasurably strengthened when viewed against the fact that, if it is not ordered, the parents will be forced to go into the final hearing without an important piece of evidence, and without having been given the opportunity to demonstrate that, despite their respective histories, they have the capacity to parent M. Indeed, it seems to me that without positive evidence from such an assessment, the outcome of the July hearing is a foregone conclusion.
 None of this, of course, is intended as a criticism of either the local authority or the guardian for forming a clear view. Indeed, they may prove in due course to be correct. It may be that the parents will prove unable to sustain their relationship for the period of the assessment, or otherwise demonstrate during it that they do not have the capacity to parent M, let alone M and SA together. As I stated in argument, if the parents fail in the assessment, that is likely to be the end of the case as far as they are concerned.
 In my judgment, however, none of these considerations provides a good reason, on the facts of this case, for the assessment of the child under s 38(6) not to take place. As I see the case, it is manifestly in the interests of M to see if his parents are able to care for him, and it is the responsibility of the court to ensure that it has the best evidence on which to reach a conclusion about his welfare. It is also procedurally fair for his parents to be given the opportunity to demonstrate that they can overcome their manifest difficulties and care for him, and it would, in my judgment, be unfair were they to be denied that opportunity. There was powerful, well reasoned, objective and balanced evidence from Dr Drayton that such an assessment was worthwhile. The judge's misreading of the authorities deprived him of the ability to give Dr Drayton's evidence the weight it warranted."
" Looking at the case in the round, I reach the conclusion that it is probably sensible to allow the parents to instruct Dr Banks. It is very important that parents who are at risk of losing a child forever should have confidence in the fairness of the proceedings and, inevitably, that means the even-handed nature of the proceedings. Furthermore, if Dr Banks shares the opinion of those who have already spoken, there must be a measurable chance that the anticipated 2-day final hearing will either be unnecessary or can be abbreviated."
" To that limited extent I would allow the appeal and emphasise that it is upon the basis that the landscape surveyed by His Honour Judge Vincent in March is a very different landscape now in May. The mother's determination to separate is recently stated and the key issue now becomes her capacity to do that."
" That presentation is clearly open to the local authority as things stand and the consequence, as it seems to me, is that the hearing which is fixed for 2 July in front of His Honour Judge Yelton, although time-estimated 5 days, will be something of a non-event. Crucial to the mother's capacity to put any sort of positive case to the judge on 2 July is participation in the assessment and a positive report. If that were to be the development, then the judge and the experts would have to consider anxiously what should be the outcome at the hearing. What should be the next step? What sort of way forward could be cautiously pursued? If the assessment takes place and the report is negative in its conclusion, then obviously the local authority's case is much fortified and it would be hard to see that any order could result in July other than a care order."
That was not a statement of principle. As is clear from the opening words of paragraph 5 of the judgment ("So that is the context within which the judge came to rule on the application"), it was a description of the state of play in the care proceedings. Similarly the following observation in Thorpe LJ's concluding paragraph was an observation about the facts of that particular case:
" I am troubled that if this order is allowed to stand, the essential requirement of fairness to the mother in seeking to resist the care order application will be jeopardised. Her only forensic presentation at this late stage of the contested proceedings is to emerge well from the brief assessment and then to present the judge with the difficult question of what should follow. I think she should have that opportunity."
"….sufficiently recognise T's incapacity and dependence on the Official Solicitor. If the Official Solicitor, with the responsibility that he holds in the litigation, requires that assessment, it seems to me that a judge should be slow to refuse it. That refusal is all the more extreme if its immediately foreseeable consequence is to deprive the incapacitated litigant of any prospect of averting the care and placement orders sought by the local authority."
" I see this case, I have to say, in the wider context of the family justice system. Care and adoption orders are at the very extreme, indeed at the limits of, the court's powers. There is a view abroad, a view which in my view is wholly erroneous, that the court is simply a rubber stamp that approves the activities of social workers, who in turn are only too willing and anxious to remove children from their parents' care. As I say, that, in my judgment, is a wholly fallacious view. However, its corollary is that the forensic process must be fair. I see that in Re L and H (Residential Assessment)  EWCA Civ 213,  1 FLR 1370, a case helpfully cited by Ms Ford in her skeleton argument, I said this (at para ), and I stand by it:
"'what is equally important is that the hearing of the proceedings should be fair (or, to put the matter in the language of the European Convention, Art 6 compliant) and that the court should have before it all relevant evidence necessary for the decision."
" In my judgment, the Official Solicitor had a plain duty to investigate the case on the mother's behalf and to obtain whatever evidence he thought appropriate in order to do so……..
 …. What the Official Solicitor wants to do, as I see it, is to obtain a further independent – and I stress the word 'independent' – psychiatric assessment of the mother in order to assist him in deciding how he should put her case before the judge, whoever it is, who takes the final hearing. In my judgment, the Official Solicitor should be allowed to take that course and obtain the report he seeks."
" I think it important to remember when one is looking either at the independent assessments by social workers or at applications under s 38(6) of the Children Act 1989 that one needs to be child focused. It is not a question of the mother's right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?....." [my italics]