Re G (A Minor) (Interim Care Order: Residential Assessment)
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD CLYDE,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD MANCE |
| Judgment Date | 24 November 2005 |
| Neutral Citation | [2005] UKHL 68 |
| Court | House of Lords |
| Date | 24 November 2005 |
and others (FC)
[2005] UKHL 68
Appellate Committee
Lord Scott of Foscote
Lord Clyde
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Mance
HOUSE OF LORDS
Appellants:
Charles Howard QC
Gemma Taylor
(Instructed by Sharpe Pritchard, agents for
Secretary, Kent County Council)
Respondents:
Jonathan Cohen QC
Charles Hale
(Instructed by Davis & Simmonds and
Herringtons)
My Lords,
This appeal raises an important question about the extent of the court's power under section 38(6) of the Children Act 1989 to give directions for the "medical or psychiatric examination or other assessment of the child." Subsections (1) and (2) of section 38 enable the court to make an interim care order in respect of a child if satisfied there is reasonable ground for believing that the threshold criteria for making a care order or supervision order in respect of the child are satisfied (see section 31(2)). These criteria are, broadly speaking, that the child is likely to suffer significant harm and that the likelihood of harm is attributable to the standard of care of the child being lower than that which it would be reasonable to expect a parent to give.
As its name suggests an "interim" care order is a temporary order, applied for and granted in care proceedings as an interim measure until sufficient information can be obtained about the child, the child's family, the child's circumstances and the child's needs to enable a final decision in the care proceedings to be made. The applicant for an interim care order is nearly always the local authority that has instituted the care proceedings. Given its "interim" character it is not surprising to find that the duration of the initial interim order may not be longer than eight weeks. But it may then be renewed for a further period, not exceeding four weeks; a renewed order may itself be renewed but no renewal may be made for a period longer than four weeks. And on each renewal application the section 31(2) threshold for making an interim care order must be satisfied.
The temporary character of interim care orders is, therefore, clear and the information gathering process for the purposes of the final decision as to whether a care order should be made, and during which it might be necessary to maintain an interim care order in place, is intended to be completed speedily. In June 2003 the President of the Family Division, the Lord Chancellor and the Secretary of State handed down a Protocol for Judicial Case Management in Public Law Children Act Cases. The Protocol set a guideline of 40 weeks for the conclusion of care cases and the foreword to the Protocol emphasised that -
"… Though a fair and effective process must intervene before a child is taken from its parents … it is essential that unnecessary delay is eliminated …"
The warning against unnecessary delay echoes the general principle expressed in section 1(2) of the Act. This is the context in which the intended scope of section 38(6) must be judged.
Section 38(6) provides that -
"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."
I have had the advantage of reading in advance the opinion that has been prepared by my noble and learned friend Baroness Hale of Richmond. I agree with her conclusion that this appeal should be allowed and with her reasons for that conclusion, and, if I may say so, have found her opinion particularly valuable for its survey of the background to the 1989 Act and its examination of the reasons why subsection (6) was included in the statutory scheme for interim care orders. I respectfully agree with her that the principal purpose of the subsection was to enable the court to control, and therefore be able to limit, the number and type of examinations or assessments that a child who had become the subject of care proceedings could be required to undergo. The subsection seems to have become, however, by judicial development a vehicle for achieving a much broader purpose. The issue on this appeal is whether that development represents a legitimate extension of the original statutory purpose or purposes of the subsection.
Lady Hale has set out in paragraphs 38 to 42 of her opinion the relevant facts of this case. I gratefully adopt and need not repeat them. I will use also the name, Ellie, that Lady Hale has, for the purposes of her opinion, attributed to the child who was the subject of the care proceedings.
It was not, I think, in dispute that the main purpose of the assessment in a residential unit at the Cassel Hospital, directed by the Court of Appeal for Ellie, her mother and her father, thereby reversing Johnson J's decision of 24 October 2003, was to ascertain whether by a continuing course of psychotherapy Ellie's mother could be sufficiently changed so as to be brought to a state in which it would be safe for her to have the care of Ellie. The local authority objected, as they had successfully done before Johnson J, to the making of this order. They said that the court had not power to give such a direction. The giving of directions for therapeutic treatment of a parent could not, they said, be brought within section 38(6). The Court of Appeal disagreed: [2004] 1 FLR 876. Thorpe LJ said, at para 48, that
"The essential question should always be, can what is sought be broadly classified as an assessment to enable the court to obtain the information necessary for its own decision?"
My Lords I am unable to accept that Thorpe LJ's question represented a correct formulation of the question an affirmative answer to which would open the door to an exercise of the section 38(6) power. I do not doubt that the proposed therapeutic treatment that the mother was to receive, and an assessment of its effect on her and of her ability to benefit from it, was likely to constitute very valuable evidence informing the court's decision as to whether or not a final care order in respect of Ellie needed to be made. Nor do I doubt that a continuing assessment of the relationship between Ellie and her mother in the light of the continuing therapeutic treatment the mother was to receive would be similarly valuable. But that is not enough, in my opinion, to open the door to an exercise of the section 38(6) power. Section 38(6) is contemplating an assessment of the child. True it is that any meaningful assessment of a child may need to be, or include, an assessment of the child with his or her parents, or otherwise in a family context. As Lord Browne-Wilkinson said in In re C (A Minor)(Interim Care Order: Residential Assessment) [1997] AC 489, 502
"… it is impossible to assess a young child divorced from his environment. 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."
But, to come within section 38(6), the proposed assessment must, in my opinion, be an assessment of the child. The main focus must be on the child. In the present case the main focus of the proposed residential assessment was not on Ellie. It was on her mother. The assessment was not, for example, for the purpose of seeing whether or not Ellie and her mother had become satisfactorily bonded with one another. It was common ground by the time the case came before Johnson J that they had. Nor was it for the purpose of assessing her parents' behaviour towards her (c/f In re C). Nor was there any question about Ellie's health that needed to be assessed. What was to be assessed was her mother's capacity for beneficial response to the psychotherapeutic treatment that she was to receive. Such an assessment, no matter how valuable the information might be for the purposes of the eventual final care order decision, could not, in my opinion, be brought within section 38(6).
Mr Cohen QC, counsel for the respondents, relied very heavily on dicta from the opinion of Lord Browne-Wilkinson in In re C. At p 500 Lord Browne-Wilkinson said that
"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."
He added that it should be borne in mind that the court's function, in exercising its jurisdiction under the Act, was investigative and non-adversarial and at p 501 said this -
"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."
It is important, however, to bear in mind that In re C was a case in which a very young child had sustained serious injuries while in the care of his parents, injuries that the parents were unable satisfactorily to explain. The issue was whether an assessment of the child and his parents at a residential unit could be directed under section 38(6). The manner in which the respective parents behaved toward the child, particularly in stressful...
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