House of Lords
Session 1996-97
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Judgments - In re C (a minor) (1996)


  Lord Browne-Wilkinson   Lord Griffiths   Lord Lloyd of Berwick
  Lord Nicholls of Birkenhead  Lord Hope of Craighead


IN RE C (A MINOR) (1996)



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 section 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 seven 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 five 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 section 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., In re K.P. (unreported). Unfortunately, but not surprisingly, the judge's attention was not drawn to a then unreported decision, In re M. [1996] 3 F.C.R. 137, delivered by the Court of Appeal the week before, holding that there was no jurisdiction under section 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 preempted 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 L.JJ.). The primary ground of appeal was that the judge had no jurisdiction to make the order. Butler-Sloss L.J. (with whom the other Lords Justices agreed) held that the Court of Appeal was bound by its earlier decision in In re M. and allowed the appeal. But she was plainly unhappy at the result. Having expressed a hope in 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 cooperation between the local authority and the court inherent in the machinery of the Children Act, such cooperation 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 section 38(6).

    Before considering the exact point at issue, it is important to put section 38(6) in context. Before the passing of the Children Act 1989, the court, in the exercise 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] A.C. 363, 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 Act of 1989, which by section 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 section 31(2) is crossed, i.e. 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 section 31. First, it is the court which has to decide whether or not to make a care order. Second, 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. Third, 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 section 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, section 38 provides for the making of an interim care order where proceedings for a care order under section 31 are adjourned. The threshold applicable to interim care orders is lower than that laid down by section 31(2) for final orders: the court only has to be satisfied that "there are reasonable grounds for believing" that the requirements of section 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 four weeks.

    The effect of a care order is laid down by section 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: section 31(11). When a care order is made, section 33 requires the local authority to receive and keep the child in its care: subsection (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: subsection (3).

    Therefore the context in which section 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 section 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: In re L. [1996] 2 W.L.R. 395 at p. 401B-402B.

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

     "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."

There are two possible constructions of subsections (6) and (7), one narrow, the other purposive and broader. The Court of Appeal in In re M. adopted the narrow view. They held that the words "other assessment of the child" had to be construed as ejusdem generis with the words "medical or psychiatric examination". They attached decisive importance to the fact that the subsection only refers to the examination or assessment "of the child" and makes no reference to the examination or assessment of any other person in relation to the child. They further held that for the court to order a residential assessment of the parents and child together at a specified place would involve the court in an unwarranted usurpation by the court of the local authority's power (as the authority having parental responsibility under the interim care order) to regulate where the child is to reside. In addition to supporting the arguments of the Court of Appeal In re M., Mr. Harris, for the local authority in the present appeal, submitted that Parliament cannot have intended the court to have power to require the local authority against its own judgment to expend scarce resources: he submitted that the local authority is the only body which can properly assess how such resources are to be allocated as between the social services and the other services it has to provide and as between the various calls on its social services budget.

    My Lords, I cannot accept this narrow construction of the subsection. The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. As I have sought to demonstrate, the dividing line between the functions of the court on the one hand and the local authority on the other is that a child in interim care is subject to control of the local authority, the court having no power to interfere with the local authority's decisions save in specified cases. The cases where, despite that overall control, the court is to have power to intervene are set out, inter alia, in subsections (6) and (7). 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 preempt the court's judicial decision.

    This broad approach is supported by consideration of subsection (7) which does not appear to have been drawn to the attention of the Court of Appeal either in In re M. or in the present case. Subsection (7) confers on the court the power to prohibit an examination or assessment which the local authority is proposing to make. It is manifestly directed to the type of conduct by social services revealed by the Cleveland Inquiry, i.e. repeated interviews and assessments of the child and his parents which are detrimental to the child. This negative control by the court cannot have been intended to be limited to cases where the child, and only the child, is to be assessed. If it is to be fully effective to prevent damage to the child, the power under subsection (7) must also extend to cases where it is proposed to assess the relationship between the parents and the child.

    I am not convinced by the reasons which persuaded the Court of Appeal in In re M. to adopt the narrow construction limiting the ambit of the section to assessments of the child alone, such assessments to be of the same type as medical or psychiatric examinations. First, I can see no reason for the application of the ejusdem generis principle. What is the genus? Subsection (6) refer not to the "medical psychiatric or other examination" of the child but to "other assessment" of the child. Some assessments, even if confined to the child itself, may not involve any examination of that child, yet plainly such an assessment is authorised by the subsection. I can find no genus to which the principle can apply.

    Next, it is true that the subsections (6) and (7) only refer to the assessment "of the child" and not, as is proposed in the present case, a joint assessment of the child and the parents, including the parents' attitude and behaviour towards the child. But 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. This is shown particularly clearly by cases in which the courts have to decide whether the threshold requirements of section 31 are satisfied because of the harm to the child that is likely to be suffered because the child is beyond parental control. How can the court determine that issue without considering the relationship between the child and the parents? The court has no power to order the parents to take part in any assessment against their wishes, any more than, as the final words of subsection (6) show, the court can order the child to do so if the child is capable of making an informed decision. But what the interests of justice require is not a power to compel the parent to take part in such assessment but a power in the court to override the powers over the child which the local authority would otherwise enjoy under the interim care order. If the narrower construction were to be adopted the local authority could simply refuse to allow the child to take part in any assessment with his parents.

    The Court of Appeal in In re M. were much influenced by the consideration that by making an order for residential assessment at a defined place the court would be interfering with the local authority's power under section 23 to fix the child's place of residence. It has been decided by the Court of Appeal in In re L. [1996] 2 F.C.R. 706 that the court, in making an interim care order, has no power to impose conditions on the care order as to where the child should reside. In re L. raised no question on the powers of the court to order residential assessments under section 38(6) but Ward L.J. expressed concluded views on this question which the Court of Appeal in In re M. followed. Ward L.J. said that the court had no power to order a residential assessment at a specified place. Millett L.J., whilst agreeing with Ward L.J. on the only issue before the court, expressed the view that a judge could impose "a condition which is consequential upon the giving of directions for a residential assessment under section 38(6) . . . ." I can attach no weight, one way or the other, to these obiter dicta. Ward L.J. does not seem to have appreciated that the whole purpose of section 38(6) is to override the powers which, apart from it, the local authority would have under an interim care order to refuse to permit any examination or assessment. He makes no reference to section 38(7).

    Mr. Harris sought to develop the argument by saying that, if the court could order residential assessment at a specified place, that would override the duties of the local authority as to the placement of children within their care imposed under section 23(2). The conditions under which such placement can be made are further regulated by regulations made by the Secretary of State. I do not accept this submission. Section 23 and the regulations made thereunder are concerned with placements made by local authority with foster parents and others: section 38 is not dealing with that issue at all. It is providing for the assessment of the child for the purpose of assisting the court in its assessment of the child's best interests. An order specifying where and with whom that assessment is to take place is not "a placement" within section 23 at all.

    Much the most powerful of Mr. Harris's submissions is that based on the expenditure of scarce resources by the local authority in the carrying out of an expensive assessment. In the overwhelming majority of care cases, the parties are in straitened circumstances and there is no-one to pay for any examination or assessment under section 38(6) other than the local authority. In the present case, the proposed residential assessment is going to cost some £24,000 and the local authority, taking as it does a gloomy view of the result of the assessment, considers that expenditure on that scale is not a sensible allocation of its limited resources, a decision which it is far better qualified to take than the court. I accept the force of this submission but it proves too much. Mr. Harris was not able to argue that if the court directed a medical examination of the child himself, which examination would be very expensive, the local authority could refuse to carry it out simply on the grounds of the expense involved and the unwise allocation of limited resources. In such a case, it will be for the court to take into account in deciding whether or not to make an order for the medical examination the expense that it involves. If that is so, the issue of resources cannot affect the proper construction of subsection (6). The consideration of the resource consequences of making the order must be the same whether the court is making an order for medical examination of the child or an order for the other assessment of the child. Therefore it is impossible to construe section 38(6) in the narrow sense simply because the court is less suitable than the local authority to assess the financial considerations.

    In my judgment, therefore, subsections (6) and (7) of section 38 of the Act are to be broadly construed. They confer jurisdiction on the court 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. In exercising its discretion whether to order any particular examination or assessment, the court will take into account the cost of the proposed assessment and the fact that local authorities' resources are notoriously limited.

    Since the point does not directly arise for decision in the present case, I express no final view on whether, on an application under section 38(6), it is appropriate for the court to enter into a detailed consideration of the resources of the local authority and the allocation of such resources. As at present advised the course adopted by Hogg J. in the present case seems to me entirely satisfactory. In exercising her discretion she took into account the substantial cost of the proposed residential assessment and the fact that the local authority had limited resources to allocate. Having weighed that factor in the balance, she exercised her discretion to make the order sought. Mr. Harris argued that this exercise of her discretion was erroneous in that the judge ought to have insisted on having fuller evidence as to the resources available to the local authority to meet the cost of the residential assessment. This submission is plainly ill-founded. Whether or not it is appropriate for the judge to consider in such cases the allocation of resources by the local authority, it was for the local authority to put before the judge any evidence they wished her to consider. They cannot be heard to complain if she exercised her discretion on the basis of the only evidence put before her.

    For these reasons I would allow the appeal and restore the order of Hogg J.


My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.


My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.


My Lords,

    I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.


My Lords,

    For the reasons given in the speech to be delivered by my noble and learned friend, Lord Browne-Wilkinson, which I have read in draft and with which I agree, I too would allow this appeal.

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