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Cite as: [1996] 4 All ER 871, [1997] 1 FLR 1, [1997] 1 FCR 149, [1997] AC 489, (1997) 161 JPN 62, [1997] Fam Law 228, [1996] UKHL 4, [1996] 3 WLR 1098

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		BAILII Citation Number: [1996] UKHL 4
		Case No:

IN THE HOUSE OF LORDS

28 November 1996

B e f o r e :

Lord Browne-Wilkinson,
Lord Griffiths,
Lord Lloyd,
Lord Nicholls of Birkenhead and
Lord Hope of Craighead
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Between:

RE C (INTERIM CARE ORDER: RESIDENTIAL ASSESSMENT)

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A. Anthony Rumbelow QC, Anthony Hayden and Gillian Irving (instructed by Sharpe Pritchard for Norcross, Lees & Riches and Booth & Middleton) for the parents
David Harris QC and Maureen Roddy (instructed by Local authority solicitor) for the local authority
Leslie Newton and Ceri Warnock (instructed by Temperley Taylor Chadwick) for the guardian ad litem
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HTML VERSION OF JUDGMENT
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LORD BROWNE-WILKINSON: My Lords, this appeal concerns a child, T, who was born on 11 June 1995. At the end of October 1995 he was taken to hospital where he was found to be suffering from serious injuries which, in the view of an experienced consultant paediatrician, were non-accidental. His parents, in whose care he had been, were young and inexperienced, the mother being 17 at the time of his birth and the father 16. They are immature and have a difficult relationship with each other. They lack family backing. They are unable to give any satisfactory explanation of how T came to suffer his injuries.

On 1 November 1995 the local authority obtained an emergency protection order. On 9 November 1995 the court made an interim care order under s 38 of the Children Act 1989, which order has since been periodically extended from time to time. The court has appointed a guardian ad litem for T. After T's discharge from hospital, he was placed by the authority with foster-parents with whom he is still living. It is not yet known whether he has suffered permanent brain damage.

Social workers employed by the local authority conducted a prolonged investigation of T and his parents over a period of some 7 months. They reported to the court in what has been called the Orange Book assessment that, although the parents were deficient in parenting skills and their relationship was difficult, they had made progress in their caring for T, with whom they had had contact for some 4-5 hours daily from Monday to Friday in each week. They expressed the following conclusion:

'At this stage in the assessment we feel that a more in-depth assessment at a residential unit is essential and should be undertaken as soon as possible. This placement would need to be fully supervised in an attempt to test out for longer and more realistic periods of time the parents' ability to cope whilst affording T protection. The gap in the assessment so far has clearly been the lack of opportunity to assess the parents' ability to cope over long periods of time and in particular stressful situations. This will enable the parents' care to be observed at night times where there are regular occasions when T has little sleep and is difficult to settle. These situations can be demanding and stressful for carers, especially if this continues for consecutive nights as is the situation with T.'

There has also been an assessment of the parents by a clinical psychologist who supported the proposal for a residential assessment of T and the parents together.

The guardian ad litem, having seen the reports of the social workers and the psychologist, reported her views to the court. She recognised that this was a very high risk case. She pointed to the severe injuries suffered by T as a baby of which there was no adequate explanation and to the youth, immaturity and unsatisfactory relationship of the parents. On the other side, she drew attention to the commitment shown by the parents in attending 5 days a week for 4-5 hours for supervised contact with T and the improvement in their parenting skills. She expressed her conclusion as follows:

'It is my view that it is inappropriate to make a final decision on T's future placement without the information which could be obtained from a residential assessment. Even if there is only a slight possibility that T could be rehabilitated with his parents I feel this possibility should, in fairness to T, be fully explored.'

Despite the recommendation made by their own social workers that residential assessment would be desirable, the local authority did not agree. It was initially indicated that the refusal of the local authority to countenance a residential assessment was based on financial grounds: the proposed residential assessment would cost some £18,000-£24,000. However, the reasons put forward by the assistant director of social services to the court were not linked to money. She considered in detail what she called the crucial areas: the lack of explanation of the injuries, the lack of frankness by the parents as to the cause of the injuries, the unstable relationship between the parents, the lack of the parenting skills necessary to deal with T's special needs and the fact that the demands of those special needs would produce the stress on the parents which may have led to them injuring T. In the light of those factors, she expressed the view that any consideration of rehabilitation with his parents would expose T to an unacceptable level of risk. She further said that, at the final hearing for a care order, the local authority would press for a care order with a view to T being placed in a permanent alternative placement, presumably with a view to adoption. In short, the local authority was not prepared to agree to, or pay for, the residential assessment which was proposed.

It was in those circumstances that the case came before Hogg J on the hearing of an application that she should make a direction under s 38(6) of the Children Act that T and his parents should be the subject of a residential assessment at a specified place. Section 38(6) provides:

'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.'

Before the judge, the local authority submitted that the court had no power under the subsection to direct the local authority to carry out the residential assessment proposed. The judge rejected this submission. She founded her decision on a decision of Singer J, Re KP (A Minor) (unreported) 11 October 1995. Unfortunately, but not surprisingly, the judge's attention was not drawn to a then unreported decision, Re M (Interim Care Order: Assessment) [1996] 2 FLR 464, delivered by the Court of Appeal the week before, holding that there was no jurisdiction under s 38(6) to order such residential assessment. Having held that she had jurisdiction, Hogg J then considered the exercise of her supposed discretionary power. She weighed the factors put forward by the local authority, including the estimated cost of £24,000 and the consequent use of its resources. She also took into account the delay involved in such assessment. She weighed these factors against the recommendations from the social workers, the psychologist and the guardian ad litem that residential assessment would be of value and, indeed, essential if the parents were to have any hope of keeping T. She decided in the exercise of her discretion that the proposed residential assessment should take place, broadly on the grounds that, in view of the unexplained injuries to T, there was no possibility that the court would allow T to live with his parents unless the residential assessment demonstrated that there was no unacceptable risk in so doing: the decision by the local authority not to have such an assessment effectively pre-empted the court's decision at the final hearing of the local authority's application for a care order.

The local authority appealed to the Court of Appeal (Butler-Sloss, Waite and Roch LJJ). The primary ground of appeal was that the judge had no jurisdiction to make the order. Butler-Sloss LJ (with whom the other Lord Justices agreed) held that the Court of Appeal was bound by its earlier decision in Re M and allowed the appeal. But she was plainly unhappy at the result. Having expressed a hope in Re M that a local authority would normally pay attention to a judge's decision that an assessment was necessary because of the spirit of co-operation between the local authority and the court inherent in the machinery of the Children Act, such co-operation had not taken place in the present case. She expressed the view that at some stage your Lordships' House might have to reconsider the true construction of this section.

T's parents appeal against that decision. Your Lordships are therefore faced with a short, but important, point on the construction of s 38(6).

Before considering the exact point at issue, it is important to put s 38(6) in context. Before the passing of the Children Act 1989, the court, in the exer cise of its wardship jurisdiction, retained a degree of control over its wards, even if the child was in the care of the local authority. Due to the decision of your Lordships' House in A v Liverpool City Council [1982] AC 363, (1981) 2 FLR 222 those powers were, as a matter of practice, limited so as to be exercised only when there were gaps in the statutory regime or in support of the powers of the local authority. Apart from such cases, it was the local authority who had the power and the duty to make decisions as to the welfare of the child in its care. This approach was strengthened by the 1989 Act, which by s 100 expressly excludes the wardship jurisdiction in certain cases.

Part IV of the Act contains a code regulating care and supervision orders (public law cases). Section 31 provides that the court may make a care or supervision order on the application of a local authority or of a very limited class of other applicants. The order, if made, places the child in the care of the local authority. But a final order can only be made if the threshold laid down by s 31(2) is crossed, ie the court is satisfied that the child is suffering or is likely to suffer significant harm and that such harm is attributable either to the care being given to the child not being what it would be reasonable to expect a parent to give to him or to the fact that the child is beyond parental control.

There are three points to note about a final care order under s 31. First, it is the court which has to decide whether or not to make a care order. Secondly, before the court can make an order it has to be satisfied that the harm being suffered or anticipated is attributable to the actual or anticipated care being received by the child, an issue likely to be dominated by the evidence as to the abilities and conduct of the parents and the relationship between the child and those parents. Thirdly, the threshold can be crossed where the harm is due to the child being beyond parental control, an issue on which the relationship between the child and his parents is central.

In many cases, including the present, the determination of the question whether the court should make a final care order under s 31 requires information to be gathered as to the child's circumstances and for that information to be placed before the court to enable it to make its decision. But there are many cases where the child will be at risk in the period pending final determination of the application for a care order. To meet this need, s 38 provides for the making of an interim care order where proceedings for a care order under s 31 are adjourned. The threshold applicable to interim care orders is lower than that laid down by s 31(2) for final orders: the court only has to be satisfied that 'there are reasonable grounds for believing' that the requirements of s 31(2) are satisfied. If so satisfied, the court may make an interim care order of limited duration, initially for not more than 8 weeks and on any renewal for not more than a further 4 weeks.

The effect of a care order is laid down by s 33. In general, this section applies as much to interim care orders as to final orders since the words 'a care order' are defined to include both: s 31(11). When a care order is made, s 33 requires the local authority to receive and keep the child in its care: s 33(1). The local authority is given parental responsibility for the child and (with certain exceptions) the power to determine the extent to which parents and others having parental responsibility for the child are allowed to meet such responsibilities: s 33(3).

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. It must always be borne in mind that in exercising its jurisdiction under the Act, the court's function is investigative and non-adversarial: Re L (Police Investigation: Privilege) [1996] 1 FLR 731.

Against that background, I turn to consider the construction of s 38(6) which I have already quoted. It is important also to refer to s 38(7) which provides as follows: