(back to preceding text)

    45.  Lord Nicholls explained that this was a deliberate departure from the previous position under the wardship jurisdiction of the High Court, where the court retained power to give directions to the local authority (the same applied to the matrimonial jurisdiction of divorce courts, but the powers of the juvenile courts, which heard the bulk of the care cases at the time, were more limited). He pointed out that this was the result of a deliberate and widely discussed policy decision made at the time (p 310, para 27).

    46.  He referred to the Review of Child Care Law (September 1985), which ultimately led to the public law provisions of the 1989 Act. This prompted by the Second Report of the House of Commons Social Services Committee on Children in Care (Session 1983-84, HC 360-I). On this issue, the Committee said this (at paras 66 - 67):

"66. There is a strong current of opinion in some quarters that the courts in care proceedings are at present unduly restricted by limitations on their powers to legitimising, if not actually rubber-stamping, the decisions and plans of local authority social services departments. As a reaction to this, a groundswell of opinion has arisen to suggest that the court - preferably reconstituted as a 'family court' - should be involved to a far greater degree both in discussions on long-term plans for a child when an order of any sort is made, and subsequently supervising the implementation of such plans . . .

67. The general principle upon which we have based our consideration of the correct balance between the need for justice and the welfare interests of children is that the courts should make long-term decisions impinging directly on the rights and duties of children and their parents, and that the local authority or other welfare agency should make decisions on matters which, although they may be of equal or greater importance, are not susceptible to clear and unambiguous resolution."

    47.  The Review of Child Care Law, the report to ministers of an interdepartmental working party (of which I was a member) (1985) adopted this principle (at paras 2.22 - 2.26):

"2.20. One of our guiding principles has been that the court should be able to determine major issues such as the transfer of parental rights and duties where there is or may be a dispute between parents and local authorities, while the management of the case should be the responsibility of the local authority. . .

2.23. The expertise of a court lies in its ability to hear all sides of the case, to determine issues of fact and to make a firm decision on a particular issue at a particular time, in accordance with the applicable law. It cannot initiate action to provide for the child, nor can it deliver the services which may best serve the child's needs. It is arguable that only if it were given the power to choose the precise placement of the child and the resources to ensure that a sufficient range of placements was made available, could a court realistically be given the function of undertaking regular reviews of the future of each child in care.

2.24. It is not only important that the reviewing body should itself have the power to deliver the care which it considers best for the child: it is also necessary that the body with day to day responsibility for the child should have a positive duty to 'take a grip on' the case and make firm and early decisions without the temptation to pass responsibility to another body."

"The Children Act, embodying what I have described as a cardinal principle, represents the assessment made by Parliament of the division of responsibility which would best promote the interests of children within the overall care system. The court operates as the gateway into care, and makes the necessary care order when the threshold conditions are satisfied and the court considers a care order would be in the best interests of the child. That is the responsibility of the court. … Then it is the responsibility of the local authority to decide how the child should be cared for."

    48.  Thus the court's role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order.

    49.  But the position on the ground is never as simple as that. As Lord Nicholls went on to explain (at paras 29 - 31), "the [care] system does not always work well". He referred to People like Us, the Report of the Review of the Safeguards for Children Living Away from Home, led by Sir William Utting (1997), and to The Government's Response to the Children's Safeguards Review (1998, Cm 4105), which launched the "Quality Protects" programme. In his Foreword, Frank Dobson, Secretary of State for Health, explained how

"the Utting Report . . painted a woeful tale of failure. Many children who had been 'taken into care' to protect and help them had not been protected and helped. Instead some had suffered abuse at the hands of those who were meant to help them. Many more had been let down, never given the attention they needed, shifted from place to place, school to school, and then turned out when they reached 16."

    50.  The courts are only too well aware of some of the problems in the care system, not least because they tend to see the problems rather than the successes. They also see those problems in the context of a legal system which has always tried, and is now required, to respect the rights of both parents and child to their family life together unless there are compelling reasons to interfere. Many in the family justice system can also recall the days before the 1989 Act, when the principal decision facing the court in wardship proceedings was not whether the child should be removed from the family, but whether to approve a long term placement with a view to adoption, rather than keep alive the hope of reuniting the child with her family. Since the early 1970s, social work practice, too, has quite rightly been concerned to plan a permanent future for the child, whether that lies at home with her family or elsewhere with another "forever family". No-one wants a child, especially a young child, to be left indefinitely in care, with no "real" parents other than a public authority.

    51.  Thus the courts have always been concerned to know about the local authority's plans for the child. The House of Commons Social Services Committee put it this way (1983-84, HC 360-I, para 70):

"We would not want courts to delay a decision unduly, nor to use that power of delay to pressure local authorities into a course of action designed to satisfy the court rather than to suit the child. But the court is entitled to expect to be told an authority's general intentions on matters such as placement or parental access, and to base their choice between for example, a supervision order [or] a care order . . . to an extent on that information."

    52.  The 1989 Act itself strengthened the internal processes of care planning within local authorities, but it also gave added prominence to the care plan in the court's own decision-making. Under section 31(1) of the Act, the court cannot make a care or supervision order unless it is satisfied of the so-called "threshold conditions" relating to the risk of harm to the child if an order is not made. But this is just the threshold. When deciding what, if any order to make, the child's welfare is the paramount consideration (section 1(1)), having regard in particular to the "checklist" of factors relevant to her welfare (section 1(3)). But the court "shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all" (section 1(5)). At this stage, therefore, the court has to take out its crystal ball and seek to discern, so far as it can, what the future might hold for the child.

    53.  As Professor Judith Harwin put it in "Care Planning: an Inter-agency Endeavour: Observations", a paper given at the President's Inter-disciplinary Conference in September 1997 (see Thorpe and Clarke, eds) Divided Duties, Care planning for children within the family justice system (Family Law 1998), at p 85, "The care plan provides a framework for local authority case management and it delineates the goals to be achieved and the desired outcomes for the child." The Department of Health, Children Act 1989 Guidance and Regulations, volume 3, Family Placements, para 2.62, gave guidance on what the contents of a plan for the child should be. Research indicated that most authorities followed this, although not always as fully as the courts would have liked. But the 1997 President's conference also revealed that the courts still had concerns about their lack of control over the implementation of the care plan once a care order had been made and a corresponding concern that the plan should be as full, clear and precise as possible before the court was committed to making the order.

    54.  This latter concern was met by further guidance from the Department of Health, Care Plans and Care Proceedings under the Children Act 1989 (Local Authority Circular LAC (99)29). But, as Sir William Utting had himself said when Chief Social Services Inspector, in his foreword to Protecting Children, A Guide for Social Workers undertaking a Comprehensive Assessment (the so-called "orange book" published in 1988), "Good practice requires that a social work action plan should be based on an assessment in which all relevant factors have been evaluated." These obviously include the identified needs of the child and the capacity of her parents, the wider family and the children's services to meet those needs. The "orange book" has since been replaced by the comprehensive guidance given in the Department's Framework for the Assessment of Children in Need and their Families (2000).

    55.  This emphasis upon careful scrutiny of the care plan, formulated in the light of a comprehensive assessment of the child and her family, has inevitably put back the point at which the court is ready to make a final order and thus to relinquish control to the local authority. To return to Lord Nicholls in In re S, [2002] 2 AC 291, para 92:

"When a local authority formulates a care plan in connection with an application for a care order, there are bound to be uncertainties. Even the basic shape of the future life of the child may be far from clear. Over the last 10 years problems have arisen about how far courts should go in attempting to resolve these uncertainties before making a care order and passing responsibility to the local authority."

    56.  He went to recount cases falling either side of the line: on the one hand, allowing a limited period of "planned and purposeful delay" before making the order (see C v Solihull Metropolitan Borough Council [1993] 1 FLR 290) and, on the other, where the uncertain outcome of parental treatment was a matter to be worked out after the care order was made, not before (see In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. He concluded (para 99) that:

"Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future."

Further than that, he did not feel able to go.

    57.  In many cases, of course, the child will be the subject of an interim care order made under section 38(1) of the 1989 Act. This does not pre-judge the eventual outcome of the case, as the court has only to be satisfied that there are reasonable grounds for believing that that the threshold criteria for making a full care order are made out (see section 38(2)). Nevertheless, the legal effect while the order is in force is the same as a full care order (see section 31(11)). This means that the local authority have parental responsibility for the child and can determine the extent to which the parents are able to meet their own responsibility (see section 33(3) and (4)). Thus the child is fully protected but the court and the child's guardian remain fully involved in the case. This may contribute to the temptation to remain involved until much of the uncertainty referred to by Lord Nicholls has been resolved. But that temptation should be resisted if it conflicts with the "cardinal principle" and the equally important principle that delay in determining their future is bad for children.

Delay

    58.  To my mind, the link between the uncertainty referred to by Lord Nicholls and the problem of "delay" in care proceedings is clear. It is no surprise to find that care proceedings now take far longer than was envisaged when the 1989 Act was passed. As the Lord Chancellor's Department's Scoping Study on Delay in Children Act Cases (March 2002) pointed out,

"24. When the Children Act 1989 was implemented in 1991, it was anticipated that it would take an average of 12 weeks for care cases to be resolved. This has proved over-optimistic and has rarely been realised in practice. . . By 1996 care cases were in fact taking 46.1 weeks from the time they started to the time of a final decision.

25. By the end of 2000, this figure had risen again to an average of 50.3 weeks, 4 times as long as the original projection and almost a year of a child's life. In 2001 the figure has reduced, but is still high at 47.1 weeks."

    59.  The 1989 Act has several provisions designed to minimise delay and ensure that the case is decided as quickly as possible. Section 1(2) of the 1989 Act requires the court "to have regard to the general principle that any delay in determining the question is likely to be prejudicial to the child's welfare". Section 32 requires a court hearing care proceedings to "draw up a timetable with a view to disposing of the application without delay" and enables it to give directions for ensuring that the timetable is kept. Section 38 lays down strict time limits for any compulsory intervention in the family, whether by way of an interim care order or an interim supervision order, before the case is finally determined. The initial order can last for up to eight weeks, and the second order can last for four weeks from the end of that eight weeks, but further orders can only last for four weeks at a time (see section 38(4) and (5)). These time limits clearly reflect the expectation that the proceedings would normally last no longer than 12 weeks. The Review of Child Care Law recommended that interim orders should be available both before the threshold criteria were proved and afterwards, if the court required more information before deciding what order, if any, would be the most effective to safeguard the child's welfare. But it assumed that both the adjournment and the interim order should only be for 28 days, as "normally the presentation of the local authority's plans for the child should enable the court to determine at the time of the main hearing the effectiveness of the order which is contemplated" (para 17.22).

    60.  Experience has shown that this was always a forlorn hope. The latest attempt to tackle the problem is the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719. The President, Lord Chancellor and Secretary of State for Education and Skills begin their foreword thus:

"After over a decade of otherwise successful implementation of the Children Act 1989 there remains a large cloud in the sky in the form of delay. Delay in care cases has persisted for too long. The average care case lasts for almost a year. This is a year in which the child is left uncertain as to his or her future, is often moved between several temporary care arrangements, and the family and public agencies are left engaged in protracted and complex legal wranglings. "

    The guideline is 40 weeks for the conclusion of care cases. The basis is that "a change in the whole approach to case management and a clarification of focus, among all those involved in care cases, is the best way forward."

    61.  It is against that background that Section 38(6) has to be construed. It is set out at paragraph 2 above. But it should not be construed in isolation from subsection (7):

"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."

As Lord Browne-Wilkinson said in In re C, at [1997] AC 489, 501

"The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. . . . 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."

    62.  As Lord Browne-Wilkinson pointed out, the power in subsections (6) and (7) to decide what "medical or psychiatric examination or other assessment" the child should undergo was a power to limit or control the parental responsibility which otherwise the local authority have for the child even under an interim care order (see sections 31(11) and 33(3)(a)). On the one hand, the court might insist that the child have such an examination or assessment even if the local authority did not want this. Otherwise, the local authority would be in control of what evidence about the child might be obtained and put before the court. This could well be unfair to the parents, whose power to meet their own responsibilities for the child can be determined by the local authority (see section 33(3)(b) and (4)). On the other hand, the court might put limits on the number and type of examinations or assessments which the child had to undergo, for example by insisting on a single report by a jointly instructed independent expert in cases of suspected non-accidental injury or sexual abuse.

    63.  The legislative history makes it clear that the latter was a principal, if not the principal, purpose of section 38(6) and (7). There was no reference to such a power in either the Review of Child Care Law (1985) or the White Paper on The Law on Child Care and Family Services (1987) (Cm 62). Nor did it feature in the draft Children Bill annexed to the Law Commission's Report on Guardianship and Custody (Law Com No 172, July 1988), which reflected the proposals both of the child care law review and of the Commission's review of the private law relating to children. But also important in the genesis of the Act was the Report of the Inquiry into Child Abuse in Cleveland 1987 led by Dame Elizabeth Butler-Sloss (July 1988) (Cm 412). The Inquiry was very concerned about the number of examinations by different doctors of the same child, more for the purpose of providing information for the adults than for the advantage of the child (para 11.45). It recommended that children should not be subjected to repeated medical examinations or repeated interviews solely for evidential purposes (p 245). It also recommended that the court should have to determine disputes over medical examination during the currency of an emergency protection order and to determine further medical examinations for evidential purposes after care proceedings were initiated (pp 252-253). It is fair to conclude that section 38(6) and (7) were inserted into the Act in response to these recommendations. The same is true of section 44(6), (7) and (8), which make virtually identical provision where an emergency protection order is in force.

    64.  The purpose of these provisions is, therefore, not only to enable the court to obtain the information it needs, but also to enable the court to control the information-gathering activities of others. But the emphasis is always on obtaining information. This is clear from the use of the words "examination" and "other assessment". If the framers of the Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority.

    65.  A fortiori, the purpose of section 38(6) cannot be to ensure the provision of services either for the child or his family. There is nothing in the 1989 Act which empowers the court hearing care proceedings to order the provision of specific services for anyone. To imply such a power into section 38(6) would be quite contrary to the division of responsibility which was the "cardinal principle" of the 1989 Act. (This is reinforced by the position in judicial review proceedings, recently considered by the House in R(G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2 AC 208).

    66.  I appreciate, of course, that it is not always possible to draw a hard and fast line between information-gathering and service-providing. Some information can only be gathered through the provision of services. It may be necessary to observe the parents looking after the child at close quarters for a short period in order to assess the quality of the child's attachment to the parents, the degree to which the parents have bonded with the child, the current parenting skills of the parents, and their capacity to learn and develop. That is the sort of assessment which was involved in In re C [1997] AC 489.

    67.  But the court only has power to insist where this is relevant to the questions which the court has to answer. Where the threshold criteria are in issue, it must be recalled that these are phrased (in section 31(2)) in the present tense: that the child "is suffering or is likely to suffer significant harm"; and "that the harm or likelihood of harm is attributable to" the quality of actual or likely parental care or to the child's being beyond parental control. Where the threshold is found or conceded but the proper order is in issue, the welfare checklist is likewise focussed on the present, for example, in section 1(3)(f): "how capable each of his parents . . . is of meeting his needs". The capacity to change, to learn and to develop may well be part of that. But it is still the present capacity with which the court is concerned. It cannot be a proper use of the court's powers under section 38(6) to seek to bring about change.

    68.  These conclusions are reinforced by the Act's emphasis on reaching decisions without delay. It cannot have been contemplated that the examination or assessment ordered under section 38(6) would take many months to complete. It would be surprising if it were to last more than two or three months at most. The important decision for the court is whether or not to make a care order, with all that that entails. But the care order is not the end of the story. The court retains jurisdiction over the contact between the child and his family (see section 34). The local authority has a duty to place the child with parents or other members of the family unless this is impracticable or inconsistent with the child's welfare (see section 23(6)). The court may sometimes have to accept that it is not possible to know all that is to be known before a final choice is made, because that choice will depend upon how the family and the child respond and develop in the future.

    69.  In short, what is directed under section 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 of 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 in the Cassel had gone beyond what fell within his power to order under section 38(6). I would allow this appeal.

    70.  I would like to add two footnotes. First, I entirely accept that from a clinical point of view, these legalistic niceties are both unhelpful and unfair in the real world of trying to work with seriously disturbed families (see the discussion by Dr Roger Kennedy, Consultant Psychotherapist in charge of the Families Service at the Cassel, "Assessment and Treatment in Family Law - A Valid Distinction?" [2001] Fam Law 676). In an ideal world, the child's need for services such as the Cassel would be identified and the service provided. The only question for the court would be whether it should be provided voluntarily or under the auspices of some sort of court order. The problem is that the service needs funding and the local health trust and social services authority which have responsibility for the particular family involved may be unable or unwilling to fund it. That problem clearly requires a solution if the uniquely valuable service provided by the Cassel is to continue. But it is not permissible for the courts to try to solve the problem through a provision which was never designed for that purpose. It is sticking plaster at best and costly sticking plaster at that. We have not heard detailed argument upon whether or not the court has power to direct the local authority or any of the parties to fund the assessment. I would therefore prefer to express no concluded view on the issues raised in paragraphs 20 to 23 of the opinion of my noble and learned friend, Lord Scott of Foscote. But on the assumption that the court does have such power, the cost of any proposed assessment must be relevant to the court's decision whether or not to require the parties to provide it. However, it is inappropriate for the court to require detailed evidence from senior officers of such reluctant local authorities and insist that they prove a so-called "money defence" (cf. Re C (Children)(Residential Assessments) [2001] EWCA Civ 1305; [2001] 3 FCR 164, 172, para 31). Nor should we be tolerating a situation in which an hour's directions hearing, followed by a day's full hearing, are devoted to deciding whether or not to make a direction under section 38(6), as happened in this case.

    71.  Secondly, this case is about a course of action which everyone eventually agreed was in the child's best interests and so it has happily proved to be. But if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child's guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring. No-one denies that this was a particularly complex and difficult case in which expert psychological assessment of the risks was essential. But that is not always so.