Re H (A Child: s. 38(6) Assessment)
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] EWHC 1083 (Fam) |
| Docket Number | Case No: RG23C50021 |
| Court | Family Division |
In the matter of;
[2023] EWHC 1083 (Fam)
HHJ Moradifar
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: RG23C50021
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Edward Kirkwood (instructed by the Joint Legal Team) on behalf of the local authority
Miss Alice Thornton (instructed by Child law Partnership) on behalf of the mother
Mr Alex Forbes (instructed by Griffiths Robertson) on behalf of the father
Miss Jasbinder Dail of Rowberry Morris Solicitors for the child through her guardian Miss Samantha Clark
Hearing dates: 25 April 2023
Judgment Approved by the court for handing down
Introduction
H is a little girl who will soon be eleven weeks old. She was born preterm and suffered with symptoms of withdrawal from Morphine, Methadone, Cocaine and Mirtazapine. Regrettably, her parents are long term drug users and in 2018 her sibling was made the subject of care and placement orders. Since her discharge from hospital, H has lived in foster care under an interim care order. H's parents continue to have regular contact with her and with the support of her father, the mother invites the court to direct that H should join them in a residential placement for the family to be assessed.
The proposed residential assessment centre is Phoenix Futures. This is a specialist centre that provides an invaluable service for adults with drug and alcohol dependency. Its work is highly regarded and permits children to safely join their parents during their residence within its facilities. Whilst recognising the skilled and specialist intervention that Phoenix Futures provides, the local authority opposes the mother's application on three fundamental grounds which may be summarised as follows:
a. This is not an assessment of H and its main purpose is rehabilitative intervention to address the parents' addiction,
b. The residential setting does not comply with the terms of the Care Standards Act (2000), and
c. It is contrary to H's welfare, where the proposed assessment will take six months before any community based assessment can commence. The local authority asserts that realistically, the court will not be furnished with a final report for at least nine to twelve months.
H's guardian supports the placement and joins the parents in their detailed submissions in support of the mother's application and in response to the points raised by the local authority. Phoenix Futures has not accepted my invitation to formally intervene in these proceedings but has submitted a helpful skeleton argument which I have carefully considered. In summary it states that the proposed assessment comes within the ambit of the statutory requirements for this to be an assessment of H and its current registration meets all legal requirements.
Issues
Therefore, the issues before me, may be summarised in the following order;
a. Does the proposed assessment fall within the remit of s.38(6) of the Children Act (1989) (the ‘Act’), if so
b. Does it comply with the registration requirements of the Care Standards Act (2000), and
c. Is it in H's best interest that she should be assessed at Phoenix Futures?
The Law
The relevant statutory provisions are set out in s.s 38(6) and (7) of the Children Act (1989). In summary, under the provisions of the former subsection, where the court has made a child the subject of an interim care or supervision order, the court may direct the medical, psychiatric examination, or direct other assessments of the child. Under the latter provisions, such a direction may prohibit such an examination. Furthermore, when directing such an examination or assessment of the child, the court must be satisfied that this is “ necessary to assist the court to resolve the proceedings justly”. When exercising its jurisdiction, the court must have regard to all of the factors that are set out in s. 38(7B)
The application of these provisions is now long settled under the guidance of the House of Lords in Re C (a minor) (interim care order: residential assessment) [1996] 4 All ER 871, [1997] AC 489 and later in Re G (a minor) (interim care order: residential assessment) [2006] 1 All ER 706. These are well known authorities that I do not intend to cite in detail. However, I observe that they remain determinative of the interpretation and application of the above mentioned statutory provisions. In the second case, when giving her leading judgment, Baroness Hale of Richmond concluded at paragraph 69;
“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 Act with the minimum delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves. In this case, the judge was clearly entitled to reach the conclusion that any further in-patient treatment … had gone beyond what fell within his powers to order under s 38(6).”
More recently, in Re Y (A Child): S38(6) Assessment [2018] EWCA Civ 992 the Court of Appel has considered a proposed assessment involving Phoenix Futures when Jackson LJ gave a leading judgment in which he allowed the appeal after finding that the proposed assessment fell outside the remit of s. 38(6). I will consider this in more detail later in this judgment.
Analysis and conclusion
In 2018 each of the parents presented very differently. Their engagement with the professionals and the support that was offered was poor. The threshold findings of the court at the time when their older child was made the subject of care and placement orders, are very concerning. However, the more recent evidence demonstrates a significant change in the parents' attitude to professionals and their engagement with support. Each of the parents has demonstrated a high degree of commitment to treating their addiction and most importantly to H. Although H does not currently reside with them, they have maintained high levels of contact with her. There can be no doubt that the parents should be properly assessed as to their capacity to care for H for the rest of her life and how the family may be supported to achieve this end.
The National Specialist Family Service (‘NSFS’) comes under the general umbrella of Phoenix Futures which is a charity for the treatment of drug and alcohol dependency. NSFS holds a dual registration, firstly with the Care Quality Commission (‘CQC’) that relates to its drug and alcohol treatment, and secondly with Ofsted which concerns the provision of childcare and nursery facilities. NSFS can accommodate families whilst the adult members of the family undergo treatment. It further provides parenting and family development support whilst the family reside within its facilities. There are other additional provisions such as the onsite nursery, including observations by qualified nursery staff and weekly visits by a health Visitor. The information that is gathered will be shared with the allocated social work team and may inform any parenting assessment of the parents. NSFS does not...
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