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Judgments - Kent County Council (Appellants) v. G and others (FC) (Respondents)


SESSION 2005-06

[2005] UKHL 68

on appeal from:[2004]1 FLR 876




for judgment IN THE CAUSE



Kent County Council (Appellants)


G and others (FC) (Respondents)




Appellate Committee


Lord Scott of Foscote

Lord Clyde

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Mance





Charles Howard QC

Gemma Taylor

(Instructed by Sharpe Pritchard, agents for Secretary, Kent County Council)



Jonathan Cohen QC

Charles Hale

(Instructed by Davis & Simmonds and Herringtons)


Hearing dates:

17 and 18 October 2005




Thursday 24 NOVEMBER 2005





Kent County Council (Appellants) v. G and others (FC) (Respondents)

[2005] UKHL 68


My Lords,

    1.  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.

    2.  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.

    3.  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.

    4.  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.

    5.  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.

    6.  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?"

    7.  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).

    8.  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 situations, was to be the subject of the proposed in-depth assessment (see p 497). The focus of the assessment was the parents' behaviour towards the child and Lord Browne-Wilkinson's dicta should be read with that in mind. He cannot be taken to have intended that a direction for an examination or assessment could be made under section 38(6) whenever any information about a parent useful to the court in deciding whether or not to make a final care order could or might thereby be obtained.

    9.  The distinction between an examination or assessment where the focus is on the child and one where the focus is elsewhere has been drawn in a number of cases post-dating In re C. In re B [1999] 1 FLR 701 was a case in which section 38(6) direction had been given. The court had directed that the parents of the child be offered therapeutic treatment which, it was hoped, would enable their child to be entrusted to their care. The Court of Appeal allowed the local authority's appeal. Thorpe LJ said that he had no doubt that counsel (Mr Munby QC, as he then was) was right in characterising the proposal "as essentially a programme of therapy for the parents with a view to improving their prospects of providing good parenting rather than a programme of assessment." (p 707).

He went on

    "Essentially Dr Baker was offering a treatment programme that would address the parents' disabilities rather than a programme to assess anything in relation to the child …"

And Hobhouse LJ (as he then was) commented at p 712 that

    "… there is a distinction to be drawn between matters which involve the child alone or the child/parent relationship on the one hand, and the parents alone on the other side. The former comes within the scope of the sub-section, the latter does not."

    10.  In In re M (Residential Assessment Directions) [1998] 2 FLR 371, 381 Holman J, after referring to Lord Browne-Wilkinson's conclusions in In re C, said this -

    "… it does seem to me that both the words of the section and the language of Lord Browne-Wilkinson nevertheless impose some limits on the extent of the court's powers. They are limited to a process that can properly be characterised as 'assessment' rather than 'treatment', although no doubt all treatment is accompanied by a continuing process of assessment. And they are limited to a process which bona fide involves the participation of the child as an integral part of what is being assessed."

I agree with the learned judge's analysis.

    11.  Holman J's decision in In re M and the Court of Appeal decision in In re B [1999] 1 FLR 701 were reviewed by the Court of Appeal in In re D (Jurisdiction: Programme of Assessment or Therapy) [1999] 2 FLR 632. In this case the trial judge had made an order under section 38(6) directing a programme of treatment of a drug-dependant mother at a residential unit. The programme included supervision and assessment of the mother's care of the child but focussed on the mother's problems and her drug addiction. The Court of Appeal allowed the local authority's appeal against the order. Thorpe LJ repeated his opinion expressed in In re B that a programme might be an "assessment" even if there were an ingredient of ancillary therapy but that a programme which was substantially therapeutic would not fall within section 38(6) even if it involved some element of assessment (p 637C/D). Simon Brown LJ, as he then was, made the same point when he said that if the programme were "essentially one for treatment rather than one for assessment" it would fall outside the scope of section 38(6) (p 641B). I agree. On the other hand Auld LJ departed in my view from the statutory limits inherent in section 38(6) when he expressed the opinion that a section 38(6) direction for therapy to be offered to a parent could be justified if

    "… therapy in the short term may assist in assessing whether further therapy may produce a relevant change for the better, and thus be a useful guide to the court when considering the future of the child at the full care stage." (p 640G-H)

As it seems to me such a direction would lack the degree of focus on the child that section 38(6) requires.

    12.  Another case to which I should refer is In re B (Interim Care Order: Directions) [2002] 1 FLR 545. The local authority applied for an interim care order immediately the child, B, was born. A proposal was made for the mother and child to move from the maternity hospital to a residential placement at Beacon Lodge which, as I understand it, is a mother and baby home which provides help in improving parents' child care skills. But the local authority was not prepared to agree to this placement and the judge did not give a section 38(6) direction. The Court of Appeal allowed the appeal and gave the direction. Thorpe LJ, at para 24, said this about the proposed programme at Beacon Lodge :-

    "… one objective is to prepare women residents for independent motherhood by a process of advice, instruction and education. The assessment is ongoing and subject to continual review. Throughout assessment the mother will be made aware of areas of concern through regular key worker sessions in addition to normal contact with staff. The assessment focuses on the parents' ability to learn and develop adequate skills and, where appropriate, independent living skills would be taught. Whilst the main focus of the work is the child, it is recognised that it is frequently the needs of the mother which must be addressed in order to meet the needs of the child."

This passage, in my respectful opinion, illustrates the problem that is produced by trying to give section 38(6) a function that falls outside the statutory purpose. The learned Lord Justice refers to the focus of the assessment being on the parents' ability to develop their parenting skills but then goes on, inconsistently in my opinion, to say that the main focus of the work is the child. It is, of course, true that the end purpose of the work was to provide the child with good, or better, parents. But an assessment of the success of the programme in improving the parenting skills of the parents could not, in my opinion, be described as "an examination or assessment of the child". Thorpe LJ went on to refer to "an assessment of the attachment between mother and child and also of the capacity of the mother to respond to professional concerns" (para 25). As assessment of the former sort can, I agree, often be regarded as an assessment of the child for section 38(6) purposes, but, in my opinion, an assessment of the latter sort cannot.

    13.  Buxton LJ, in the same case, said, at para 36, that the court was given -

    "a very broad and generous power of determination in deciding what is appropriate and what is not appropriate in respect of the assessment of the child in the interim period."

That is no doubt true but a prior question is whether what is proposed is capable of being described as "an assessment of the child". What was proposed for the mother at Beacon Lodge was, in my opinion, not capable of being so described. It lacked the degree of focus on the child that section 38(6) requires.

    14.  The Cassel Hospital report dated 26 September 2003 contains a number of passages which make clear the purpose of the continuing residential programme for Ellie and her parents that Johnson J at the eventual hearing on 22 October declined to direct but that the Court of Appeal did direct. Paragraph 2 of the report refers to the Cassel's "strong recommendation that rehabilitation should be offered for this family." Paragraph 3.1 ends with the conclusion that

    "Much work still needs to be done in developing [the mother's] capacity to care and for the couple to develop their relationship enough to create a safe environment for [Ellie]."

Paragraph 3.2.1 ends, first, with the "conclusion" that

    "[The mother] has begun to show that she can be more in touch with her thoughts and feelings and accept responsibility for them. However this shift is recent and requires more therapeutic work before she could produce the good mothering she so much wants to give [Ellie] … [She] has to understand and manage her cognitive difficulties in such a way that she does not arouse excessive frustration and criticism in others."

and, finally, with the following "Recommendation" :-

    "The therapist recommends that [the mother] is given the opportunity to continue the therapeutic work started so that, with appropriate support, she and her partner can have the chance to parent [Ellie] and any future children."

It seems to me clear that the main purpose of the proposed programme was therapy for the mother in order to give her the opportunity of change so as to become a safe and acceptable carer for Ellie. This purpose, in my opinion, does not come within section 38(6) notwithstanding that the results of the programme would be valuable and influential in enabling the court to decide whether a care order in respect of Ellie should be made and that if the purpose were to be achieved it would very greatly benefit Ellie.