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

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    15.  The Cassel report of 26 September 2003 had failed to answer certain specific questions to which Johnson J had sought answers. So by an order made on 2 October 2003 the hearing was adjourned to 22 October with a direction that the family were to remain at the Cassel Hospital until then. One of the problems that had arisen related to the funding of the family's continued residential assessment at the Cassel. The order recited that the Kent County Council had agreed in principle that it would be appropriate for the family to undergo treatment at the Cassel Hospital for a further four months with a view to implementing a rehabilitation in the community plan but that the Council were unwilling to commit themselves to funding the proposed treatment. The order invited West Kent NHS and Social Care Trust (the NHS Trust) to file a statement setting out their decision about funding the proposed treatment. The matter was then to be reconsidered on 22 October 2003.

    16.  At the adjourned hearing before Johnson J on 22 October the question whether the programme of treatment and assessment at the Cassel Hospital should continue was addressed. The court had before it a further report, dated 15 October 2003, from the Cassel. This report, like the report of 26 September, was prepared by Dr Roger Kennedy. It made the point that "in clinical terms, there is little distinction between assessment and treatment" and went on to say that

    "The rehabilitation of such difficult families involves ongoing assessment in a way that is quite distinct from ordinary kinds of treatment; because the risks are potentially high and because the kind of work is very difficult; in order for rehabilitation to succeed, there has to be ongoing assessment at each of the various stages. It is not that easy to distinguish assessment from treatment, as such. There needs to be an assessment of sustainability of change" (p 4 of the report).

    17.  The good sense of what Dr Kennedy says is not challenged but an "ongoing assessment" for the very laudable and socially important purpose of rehabilitating "difficult families" cannot, in my opinion, be brought within section 38(6). That subsection has a much more limited purpose.

    18.  Johnson J, in his judgment, delivered on 24 October, referred to the Cassel Hospital reports and said that what was proposed fell very clearly on the side of therapy rather than assessment and that accordingly he had no power to give the section 38(6) direction that was sought. I think he was quite right. The main focus of the proposed programme was to improve the suitability of the mother as a responsible carer of Ellie. That falls outside the ambit of section 38(6).

    19.  The Court of Appeal reversed Johnson J's decision. Thorpe LJ said, in paragraph 33, that the totality of Dr Kennedy's evidence did not support the judge's conclusion on the scope of the court's powers under section 38(6). He went on -

    "The question was not whether what was proposed amounted to treatment but whether what was proposed, even if involving treatment, could still be described as an assessment …"

I disagree. The question, in my opinion, was not whether what was proposed could be described as an assessment but whether it could properly be described as an assessment of Ellie. The distinction between treatment and assessment may, as Dr Kennedy had said, be an unreal one in the context of a programme of continuing treatment and assessment. But the distinction between treatment of the mother and an assessment of the progress of that treatment on the one hand and an assessment of Ellie on the other hand is a real one. A programme focussed on the treatment and improvement of the mother and her parenting skills cannot, in my opinion, be regarded for section 38(6) purposes as an assessment of Ellie.

    20.  I want to add a word or two about the funding implications of section 38(6) directions. The statute does not identify on whom the cost of compliance with the directions is to fall. The effect of an interim care order is that for the time being the local authority becomes in loco parentis to the child. It is natural, therefore, to suppose that a direction by the court under section 38(6) for an examination or assessment of the child would have to be funded by the local authority or, to the extent that the costs can be treated as costs of the litigation, the costs could be apportioned between the parties by a costs order. But where there is a direction not simply for an examination or assessment of the child but for an assessment at a residential unit of the whole family, both parents and the child, or, perhaps in some cases, other very young children of the family as well, the responsibility of the local authority seems to me much less clear. Was section 38(6) really intended to enable the court to place the local authority under an obligation to fund a residential programme for the parents and child extending for many months? And the problem becomes, to my mind, the more stark where the main purpose of the programme is to provide treatment to one or other, or both, of the parents so as to improve their parenting skills. From where does the court derive its power to oblige the local authority to fund treatment for the parents? One would ordinarily expect that if medical or psychiatric treatment of a parent had to be funded it would be funded by the local NHS Trust. This, I am sure, was what was in Johnson J's mind when he issued the invitation in his order of 25 October to which I have referred. It was an invitation that he issued. It would be impossible to suggest that the court had had power under section 38(6) to direct the NHS Trust to fund the programme of therapy for Ellie's mother.

    21.  Reference was made by Lord Browne-Wilkinson in In re C [1997] AC 489 to the investigative nature of the court's jurisdiction under the 1989 Act. A court discharging an investigative function can, I would suppose, direct one or other of the parties to supply particular information that is available to that party and would assist the court in reaching its decision. But whether the court's investigative function can enable it to require a local authority applicant in care proceedings to fund a course of treatment of the child's parent in order to obtain information useful to the court in reaching its final decision is another question. The cost of obtaining information or evidence likely to be useful for that purpose can, perhaps, be regarded as part of the costs of the litigation. So it might, perhaps, be possible for the burden of the funding, or some part of that burden, to be cast upon the Legal Services Commission ('the LSC') supporting the parent or parents in question (see the discussion of this matter by Ryder J in Lambeth Borough Council v S and Others [2005] EWHC 776 (Fam). These funding difficulties were raised with counsel in the course of the hearing before your Lordships but none had any clear answer to the problems. There probably is no clear answer that can be given.

    22.  However, following the conclusion of oral argument on this appeal counsel for the respondents made some further written submissions to your Lordships regarding the funding of residential assessments by the LSC from the Community Legal Fund. It appears that on 8 November 2005 the Children and Families Team at the LSC prepared a position statement regarding the extent to which the LSC would be prepared to contribute to such funding. The statement makes clear, first, that the LSC will not fund any element of treatment, therapy or training within a programme of assessment but, secondly, subject to that will fund the costs of an assessment, or a proportion thereof either agreed between the parties or determined by the court. So if the assessment involves no element of treatment etc the LSC will fund the whole cost of the programme, including accommodation and subsistence expenses.

    23.  It seems to me that the funding problems which the LSC's position statement is addressing provide some indication that the use made of section 38(6) in some of the cases to which I have referred, and in particular by the Court of Appeal in the present case, went beyond the purpose for which section 38(6) was intended and was not a legitimate use of the subsection. The funding of the Cassel Hospital programme might have been voluntarily undertaken by the Council or by the NHS Trust or by the LSC. In the case of each of them a refusal could, subject to the essential control that the need to obtain the court's permission constitutes, have been challenged by an application for judicial review. And, if the application were successful, the proposed funder would have to think again. But if a programme of therapy for a parent with a view to improving his or her parenting skills, with or without continuous assessment of his or her progress, falls outside the scope of section 38(6), my present opinion, necessarily provisional as we have not had the advantage of full argument on the issue, is that the court would have no power to direct the local authority, or any other potential funder, to undertake the funding of the programme and that the LSC's statement of 8 November 2005 correctly reflects the legal position.

    24.  Finally, I must refer to the submissions based on the Human Rights Act 1998 that were made on behalf of the respondents. There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to "respect" for their "family life". Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie's mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie's parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie's or the parents' article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense.

    25.  For all these reasons, as well as those given by Lady Hale, I would allow this appeal. The parties have agreed that there be no order as to costs.


    My Lords,

    26.  I have had the opportunity of reading the speech which my noble and learned friend Baroness Hale has prepared. I agree with it and for the reasons there expressed would allow the appeal.

    27.  Plainly a broad and purposive construction is appropriate for section 38(6) of the Children's Act 1989. Thus the phrase "of the child" is to be understood as meaning the child in the context of his or her family, so that the investigation may extend to considering the capacity of a parent to care for the child. But whatever the range of the investigation it must still qualify as a "medical or psychiatric examination or other assessment" of the child.

    28.  The purpose of the subsection is to enable the court to receive guidance for the making of a decision on the application for a care order. That includes the matters on which it has to be satisfied under section 31(2). The investigation with regard to which the court may give directions appears from the statute to be focused on the current state of affairs. That can be seen in the use of the present tense in section 1(3) (e) and (f). It may include an understanding of the present capacity of the parent to overcome any present deficiency. So to an extent it may look to the future, but only as a matter of a current forecast. What does not seem to be envisaged is any continuing assessment over a period of months to follow the progress, if any, of the parent in improving his or her capacity to give proper care to the child or in reducing the risk to the child which led to the interim care order being sought at the outset.

    29.  That point is in my view supported by the intention of the statute that the process of examination or assessment should extend only over a relatively short period. The general approach is stated in section 1(2). The life of an interim assessment order under section 38 is only eight weeks with extensions of only four weeks. Under section 32(1) the court must draw up a timetable with a view to disposing of the case without delay. Correspondingly relatively short periods are envisaged for investigations in section 37(4) and for child assessment orders under section 43(5). It seems from the statute as if the process for obtaining care orders was intended to be rapid and usually to extend over no longer than some two or three months.

    30.  It may be tempting to suppose that the court should remain in control of the future management of the child. But while the regime introduced by Part IV of the Act gives the court power to make care orders and supervision orders it leaves the management of a child who is in care to the local authority. On the grant of a care order, whether interim or final, the local authority not only has a duty under section 33(1) to receive the child into its care but it also under section 33(3) assumes parental responsibility for the child. The court may not assume the mantle of responsibility which by its own order has been laid upon the shoulders of the local authority. In the present case the decision whether the course of treatment should be carried out in the Cassel or in the community was a matter for the parental responsibility of the local authority.

    31.  Plainly a distinction can be made as matter of language between what constitutes an assessment and what constitutes treatment. Moreover the two may co-exist. An institution directed to make an assessment may incidentally commence some form of treatment, if only to assess whether the case is susceptible to treatment. Treatment will often be accompanied by some form of assessment of the degree of success or failure as the treatment progresses. But without engaging in the terminological distinction it should be enough to recognise that the jurisdiction of the court is confined to obtaining information about the current state of affairs, including perhaps a forecast of what future progress might be possible, and does not extend to a continuing survey of the effects of treatment. Such a continuing oversight might, if the treatment is successful, lead to the termination of a care order, but it does not form part of the court's responsibility in deciding whether or not to impose such an order.

    32.  Having received the results of the examination or assessment which has been made under section 38(6) the court has then to decide how to dispose of the application for a care order. There may be occasions where there is a sound justification for prolonging the interim care order. But I do not read the statutory provisions as envisaging that the process can be prolonged by repeated interim orders, especially if they are granted as matter of administrative procedure and not of judicial decision. It is for the court to ensure that the application is processed without delay so that a decision can be reached whether or not the parental responsibility should as matters stand remain on the local authority or whether the continuation of such a position is not necessary for the safety of the child.

    33.  The granting of directions under section 38(6) is a matter of discretion for the judge and in exercising that discretion financial considerations may be relevant. But the costs involved should be nothing near the kind of expenditure which was in issue in the present case where the work involved the ongoing treatment and assessment of the mother over a period of months. Moreover when the respective responsibilities of the court and the local authority are correctly understood it does not seem to me that any issue of human rights arises.


My Lords,

    34.  I am in full agreement with the opinion of my noble and learned friend Baroness Hale of Richmond, which I have had the privilege of reading in draft. For the reasons given in her opinion I would allow this appeal and make the order which she proposes.


My Lords,

    35.  The Cassel Hospital in Richmond, Surrey, is 'an NHS institution dedicated to the assessment and treatment of severely disturbed adults, young people and families who come from all over the United Kingdom' (Families Service Information Pack). The Families Service deals with a small number of multi-problem families where there has been a severe risk to a child's wellbeing. Assessment and treatment involve a challenging combination of psychoanalytic psychotherapy and psychosocial nursing. Not surprisingly, this takes time. After an initial phase of residential assessment, normally lasting for eight weeks, a family may move on to a three phase programme of rehabilitation. Not surprisingly, this is expensive. Because of its special reputation as a centre of excellence in this difficult field, families are referred from outside the West London area. Not surprisingly, their own local health or social services authorities may be reluctant to pay.

    36.  The legal issue before us is at first sight a comparatively simple one. In what circumstances may a court direct a local social services authority to pay for a family's admission to the Cassel hospital under section 38(6) of the Children Act 1989? This reads:

    "Where the court makes an interim care order, or an 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."

    37.  Most of the extensive case law about this provision concerns the Cassel, but there are many other residential family centres and other resources around the country which specialise in the assessment and treatment of families with severe problems. Courts and everyone else involved in the sensitive and difficult work of protecting children from harm may be anxious to make use of their services in the hope that the drastic step of permanent separation of child and family can be avoided. The issue of general importance underlying the simple issue in this case is the proper division of responsibility between courts and local authorities in the protection of children.

    The facts

    38.  The history of this family demonstrates only too well the complexity of the problems. I shall change all their names. The mother was born on 14 January 1979. She had her first child, John, on 13 September 1996, when she was still aged 17. Her relationship with John's father, Leslie, did not last long. Her next child, Richard, was born three months prematurely on 27 December 1998. After spending three months in hospital, he was discharged into the care of his mother and his father, Liam. Three months later, on 13 June 1999, Richard died of multiple non-accidental injuries. Care proceedings were brought to protect the first child, John, who was not yet three. The judge, Hogg J, was unable to decide which of Richard's parents was responsible for his death. She held that either could have caused the injuries and that the mother had not told the authorities all she knew about it. (Her decision was unsuccessfully appealed to the Court of Appeal: see [2001] 1 FCR 97.) The case came back before Johnson J, who decided that the mother presented too great a risk for John to be returned to her, despite the good relationship between them. He was therefore placed with his father, Leslie. (That decision was also unsuccessfully appealed: see [2001] 1 FLR 872.) The mother then formed a new and much more promising relationship with the present father. Their daughter, Ellie, was born on 8 May 2003.

    39.  Because of the history, the local authority initiated care proceedings a few days later. At that stage, their care plan was to remove Ellie from her parents and place her for adoption with another family. However, they were persuaded to agree to a six to eight week period of assessment at the Cassel. An order directing this was made on 12 June 2003 and the family moved in on 23 June 2003. Ellie had throughout been looked after by her mother, who was breast-feeding her. A letter of instruction to the Cassel was agreed between the parties. Prime among the ten questions asked of them was to obtain an account of what had happened to Richard, an explanation for any inconsistencies between this and previous accounts, and an assessment of the mother's acknowledgement of and insight into the events which had led up to his death. The matter came back to court on 14 August 2003. The Cassel recommended a further six week assessment. This was opposed by the local authority because little if anything had been done to address those first three vital questions. Johnson J was persuaded to direct a further six to eight week period of assessment, at that stage making it clear that it would be the last.

    40.  During that period, the mother did begin to address the issues surrounding Richard's death and her emotional neglect of him. Dr Van Rooyen, a clinical psychologist instructed by the local authority, recommended continued individual and group psychotherapy for the mother, ideally in a residential setting where she could continue to care for her daughter, but otherwise in the community, while Ellie lived with her paternal grandmother and the mother visited for most of every day. The Cassel report strongly recommended that the family be offered rehabilitation, with intensive psychotherapy for the mother, which could best be done in a residential setting because of the nature of the anxieties involved and the risk to the child. At that stage, they envisaged a further six to nine months' in-patient treatment in the Cassel. But at a directions hearing on 2 October, this was reduced to four months, to which the local authority agreed in principle subject to funding. The mother was then seen by Dr Hirons, the consultant psychotherapist to the local NHS and Social Care Trust. Dr Hirons did not feel that the severity of the mother's mental health needs was such that she needed in-patient treatment. The Trust would not therefore be able to fund a further period at the Cassel. They would be able to consider a long term therapeutic plan and offer some psychotherapy in the meantime. The local social services authority were also unwilling to fund a further period at the Cassel. Their care plan, which had evolved gradually from adoption to rehabilitation now took the form of the alternative suggested by Dr Van Rooyen.

    41.  The case came back before Johnson J on 24 October 2003. He held that he had no power to direct that the local social services authority fund a further period of in-patient treatment in the Cassel, because by this time what was proposed "falls very clearly on the side of therapy rather than assessment". However, the family remained in the Cassel because there was an immediate appeal. After a hearing in December, the court announced that the appeal would be allowed. In the judgment of the court handed down in January 2004 (see [2004] 1 FLR 876, 890, para 48), the Court of Appeal said this:

    "However, we do not consider that the trial judge should distil the essential question as: is what is proposed assessment or therapy? 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?"

    42.  The issue for us, therefore, is whether on the true construction of section 38(6), that is indeed the "essential question" for the court. Before turning to it, however, we should record with joy that the family left the Cassel in April 2004 to live in their own home with a package of monitoring, therapy and support. Their rehabilitation in the community was so successful that no order was made at the final hearing of the care proceedings in July 2004. Ellie has therefore been able to live with her mother and father throughout her life. The cost to the local authority of their stay in the Cassel, however, was more than £200,000. They have appealed against the decision of the Court of Appeal as a matter of principle.

In re C

    43.  The correct construction of the phrase "medical or psychiatric examination or other assessment of the child" has already been considered by this House in In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489. This House unanimously decided that it should be given a broad construction, enabling the court to order "a joint assessment of the child and the parents, including the parents' attitude and behaviour towards the child" (per Lord Browne-Wilkinson at p 502) or "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" (at p 504). In that case, the House was not concerned with any distinction between "assessment" and "treatment". But that has since become a controversial issue: see Re M (Residential Assessment Directions) [1998] 2 FLR 371, Holman J; Re B (Psychiatric Therapy for Parents) [1999] 1 FLR 701, CA; Re D (Jurisdiction: Programme of Assessment or Therapy) [1999] 2 FLR 632, CA; Re C (Children)(Residential Assessment) [2001] 3 FCR 164, CA; Re B (Interim Care Order: Directions) [2002] EWCA Civ 25, [2003] 1 FLR 545; and BCC v L and Others [2002] EWHC 2327 (Fam), Charles J.

Courts and local authorities

    44.  The interpretation of "assessment" raises the question of what it is that has to be assessed. This in turn raises the general question of the proper division of decision-making responsibility under the 1989 Act between courts and local social services authorities. This question has recently been considered by this House in Re S (Minors)(Care Order: Implementation of Care Plan) [2002] 2 AC 291. Lord Nicholls of Birkenhead identified a "cardinal principle" of the Act, that once a final care order was made, it is for the local authority to decide how to meet their parental responsibilities towards the child. The courts' powers to intervene are limited to their jurisdictions over contact between the child and her family while she is in care, over the continued existence of the care order, and to judicial review (to these may now be added an action under the Human Rights Act 1998 if the authority has acted or proposes to act in a way which is incompatible with the Convention rights of either the child or her parents).

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