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S 38(6) Assessments in Public Law Children Proceedings

Assessments in Public Law Children Act Proceedings under s 38(6)

 

This article summarises:

 

• the legal provisions relating to family assessments;
• the case law relating to family assessments;
• the costs and funding implications of family assessments;
• the different types of family assessments available, what to look for and how to prepare;
• how to deal with an application for an order under s 38(6) of the Children Act 1989.

 

Section 38 (6)

"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"

 

Section 38(7)

"A direction under subsection (6) may be to the effect that there is to be-

• no such examination or assessment; or
• no such examination or assessment unless the court directs otherwise."

 

Section 38(8)

"A direction under subsection (6) may be -

• given when the interim order is made or at any time while it is in force; and
• varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection."

 

Protocol & Regulations

• There are no regulations!
• No specific reference to s 38(6) in the PLO
• CMC questionnaire - is further assessment proposed?
• CMC checklist on assessments - questions to be considered by court

 

 

Purpose of assessments: the broad approach

• Re C (Interim Care Order) Residential Assessment [1997] 1 FLR 1;
• For court not LA to determine if the s 38(6) direction should be made;
• Function of court is investigative & non-adversarial;
• An assessment of the child may include an assessment of the way the child is parented and the relationship with parents;
• If the primary purpose is therapy the direction will not be made;
• Unless the prospects of reunification are genuinely hopeless the court should give serious consideration to the benefits of an assessment (Re L & H (Residential Assessment) [2007] EWCA Civ 213, [2007] 1 FLR 1370;
• Kent County Council v G [2005] UKHL 68

 

 

Essential benchmarks

• the assessment of the child is necessary to the court to obtain information relevant to its decision;
• the child will not be harmed.

 

Activities which fall within s 38(6) (references are to paragraphs in KCC v G)

 

 

• assessment of the child, including the child's health (7, 69, 73);
• can include parents if the main focus is on the child (7, 69);
• attachment (7,12,66);
• parental bond (7,12,66);
• parenting skills (66);
• care of and behaviour towards a child (7, 27);
• capacity to change parenting approach or overcome problems (28);
• prognosis for the future (28,31);
• risk to the child & management of risk (28);
• limited treatment if incidental or secondary to assessment (31, 73)

 

Activities which fall outside the scope of s 38(6)

 

• improving parenting (12,19);
• treatment or therapy for parent (14) even if short-term to see if longer-term treatment would bring about change or to assess parents' response to professional concerns (11, 12, 66);
• ongoing assessment of response to treatment (7, 17, 31)
• (probably) assessments which take longer than 2-3 months (2, 29)

 

 

Policy arguments in favour of residential assessment

• Intensity of assessment
• Immediate responsiveness in terms of intervention & support
• Avoids separation (only way?) of parents & child (human rights)
• High level of protection
• Evidence gathering & efficiency
• The evidence already commissioned is not comprehensive or complete;
• A particular type of expertise is needed;
• Support offered in early stages of separation or to break a pattern of behaviour;
• The unit itself recommends the assessment;
• All other assessment types have been tried.

 

Policy arguments against residential assessment

• Unable to assess parents in normal community environment;
• Overly supportive environment - may plug gaps in parenting;
• New environment & multiplicity of carers for child;
• Stressful environment for parents;
• Focus of residential unit is treatment not assessment or parent not child

 

Pre-court preparation

• Brochure & costs (including a breakdown of the costs of any element of training, treatment or therapy), personnel & services
• Admission criteria, referral process & availability of places
• Viability report
• Feedback, reports & availability for court
• Unit working practices
• Views of the parents - manageability, expectations
• Alternatives

 

Costs

• Calderdale; LB Lambeth v S, V etc
• Revision to LSC guidance outlawing payment from public funding certificates for residential assessments.
• KCC v G & V v Sheffield

 

Family Justice Council's has expressed its opposition to the LSC Funding Code amendments and their view that:

 

"community-based assessments in such high risk cases are far less reliable and more likely to generate delay. A parent who can manage a couple of hours observed contact at a family centre may not be a safe parent when required to provide 24-hour care. Residential assessment is a far more meaningful test of capability to meet the child's needs and provides more effective risk assessment. It therefore provides the best basis for safeguarding the interests of the child."

The Council considered that the funding gap could seriously prejudice the interests of children and parents and that the LSC could be exposed to the risk of judicial review and challenges under the Human Rights Act 1998.

 

 

CASE LAW

 

Re C (Interim Care Order) [1997] 1 FLR 1

Facts

A child suffered injuries found to be non-accidental whilst in care of the parents.  Social workers who carried out extensive investigations and assessments concluded that whilst the parents had poor parenting skills and relationship problems, they had made improvement in their care of the child. They recommended further assessment under s 38(6) in a residential unit. The Guardian and the parents supported this proposal but the local authority did not citing the disproportionately high cost of the proposed assessment and the exposure of the child to an unacceptably high level of risk of harm. Therefore they refused to fund or participate in this assessment.  The care plan recommended adoption.  The Judge made an interim care order and directed that there be an assessment of the parents and child under s 38(6) at a specified venue.

Appeal

The local authority appealed to the Court of Appeal challenging the legality of the Court's direction under s 38(6) and the making of an interim care order.  Court of Appeal allowed appeal and the parents then petitioned the House of Lords. Petition allowed.

Held

Appeal allowed. The court has the jurisdiction under s38 (6) to override the views of the local authority where it is necessary for the court to discharge it's investigative and decision making function as to whether or not to make a final care order.

It is not for the local authority to decide what evidence goes before the court. The section conferred jurisdiction on the court to make such orders and directions as to assessment of the child for the purpose providing Court with all necessary material upon which it can fulfil its decision making functions.  The court rejected a narrow construction of s38 (6) and (7) as accepted by the Courts in Re M (Interim Care Order: Assessment)[1996] 2 FLR 464 C and held that s38 (6) and (7) were not restricted to medical and psychiatric assessment alone.  It was clear from the Act that "any other assessment" of the child could be ordered. This could cover an assessment and the interaction between the child and parent. The court cannot order a child or parent to participate in an assessment under s 38(6) but can override the powers the Local Authority would normally have by making directions as to assessment under s 38(6).

 

Berkshire County Council v C & Others [1993] 1 FLR 569

I & E (Residential Assessment Order) 1997 (Unreported except in Lawtel)

Re CH (Care or Interim Care Order) [1998] 1 FLR 403

Re M (Residential Assessment Directions) [1998] 2 FLR 371

Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390

Re J (Care Rehabilitation Plan) [1998] 2 FLR 498

 

Re B (Psychiatric Therapy for Parents) [1999] 1 FLR 701

Facts

The parents had previously had three children removed and placed for adoption.  The mother gave birth to a fourth child J.  The local authority applied for a care order after instructing two separate psychotherapists to report. One offered the mother individual therapy for 2 years whilst the other had grave doubts about whether the father could be successfully treated. The Guardian instructed her own psychotherapist who recommended first individual treatment then treatment as a couple leading to rehabilitation within 6-12 weeks. The Guardian rejected this report in favour of the local authority's experts. Following further discussion with a specialist consultant who advised the Guardian that he could formulate a therapeutic programme for the parents that could result in the eventual return of J to their care, the Guardian changed her mind. The local authority continued with its application for a care order.  It argued that if the Court was minded to order further assessment, this should be conducted by the Cassell Hospital. The court held that it had jurisdiction under s38 (6) to order the local authority to accept the programme put forward by the Guardian's expert.

Appeal

The Local Authority appealed on the basis that the programme was not an assessment within the meaning of s38 (6).

Held

Appeal allowed. There is a distinction between an assessment of the parent/s and child which falls within the ambit of s38 (6) and treatment or therapy for the parents, which does not. On the facts of this case the proposed programme was for treatment of the parents and not in any way an assessment in relation to the child's needs or the  parents' ability to meet those needs; even taking the child within a wider context of  "a child of the family". Accordingly the Judge had no jurisdiction under s38 (6) to impose such a programme on the local authority. It is only at very last resort should a Judge impose a programme on the local authority that it strongly opposes and which will involve a considerable amount of funding on the authority's part (particularly if it only involves one child). The Judge failed to consider adequately the local authority's proposal of assessment at Cassell Hospital and wrongly limited himself to a choice between adoption or accepting the proposal of the Guardian and parents.

 

Re D (Jurisdiction: Programme of Assessment or Therapy) [1999] 2 FLR 632

Facts

In care proceedings involving a 5 month old baby of drug dependent parents, the child's Guardian proposed that the local authority should fund a programme of treatment for the mother at a residential unit.  This would also involve supervision and assessment of the mother's care of the baby. The local authority refused but agreed instead to pay for detoxification programme for mother in a clinic. The court ordered the local authority to fund the programme under s. 38(6).

Appeal

The local authority applied for leave to appeal arguing that the programme was one of treatment for the mother and not an assessment within the meaning of s38 (6). 

Held

Appeal allowed.  The court held that the proposed programme was for treatment of the mother and not one involving an assessment of the mother's parenting ability of the child;

The primary purpose of an assessment order under s 38(6) is one of investigation in order to determine whether a final care order should be made. Whilst a programme of assessment can include an element of treatment or therapy for the mother, if this were the primary aim of the programme, the court has no jurisdiction under s38 (6) to require the local authority to fund it.

 

Re C (A child) [2002] 1 FLR 545

 

Re B (A Minor) [2002] 1 FLR 545

Facts

From a family of seven children, six were removed into care and the last child was the subject of care proceedings. The Guardian favoured an immediate assessment at a residential centre where mother and baby could be placed together. However, the local authority wanted mother and baby to be separated and to that end applied for an interim care order, with the baby to be placed with a foster carer with a pre-residential unit to carry out an assessment. The Judge reluctantly granted an interim care order and made no direction under s 38(6) thinking that he had no choice but to accede to the application for a care order or refuse it.

Appeal

The mother appealed arguing that the court failed to balance properly the advantages and disadvantages of separating mother and child and the opportunity for them to bond in a supervised environment. The mother further relied on Article 8 of the HRA 1998.

Held

Mother's appeal allowed. In the case of an interim care order, the purpose of the discretion under s 38(6) is to provide the court with all the necessary information it requires in order to make a decision on whether or not to make a final care order. The Judge was wrong in thinking that once an interim care order had been made he could not make an order under s 38(6). The proposed residential assessment clearly involved assessment of both mother and child and would provide information that the court had clearly thought would be useful in illuminating its final decision, even though other assessments were also planned which would provide relevant information

 

B County Council v L & Others [2002] EWHC 2327 FAM (Unreported)

Re H (a Child) (2002) LTL 12/12/02 extempore (Unreported)

Re G (2003) EWHC 1711 (Unreported)

Re G (Interim Care Order: Residential Assessment) [2004] 1 FLR 876

 

Re H (2004) [2004] EWHC 1628 (Fam)

Facts

The applicant mother (M) applied under 38(6) to undergo a six-week residential assessment at a unit with her child (C) who was four months' old. When M was pregnant with C the local authority had decided, given M's history of deficient care of her children, that C should be adopted. C was therefore placed with a foster carer following birth. Subsequently, M met a new partner (P) who formed a significant part of her proposals for a residential assessment with C. M's application was supported by the guardian ad litem and a consultant psychiatrist. The local authority agreed that a further assessment was necessary for the purposes of the impending final hearing but argued that a community based assessment, consisting of twice weekly attendance at a family skills group for 13 weeks followed by the possibility of a residential placement, was more appropriate.
Held

The local authority's proposed course of action would inevitably result in a delay of the final hearing, and in the determination of an outcome for C, which would be detrimental given C's age. This was the last chance for a residential assessment as C would suffer more serious "adjustment" consequences if removed from his foster carers when older. The advantage of a residential assessment was 24-hour observation allowing skilled staff to identify difficulties when they arose whereas periodic attendance at a family skills group would not provide an in depth analysis of M and her capacity to care for C. M should be given the opportunity of a residential assessment since she had made significant changes in her lifestyle to include her relationship with P who was essential to any assessment as M could not operate to the appropriate standard as a single mother. A residential assessment was necessary as without it the court would have difficulty in reaching a full and reasoned decision as to what was best for C's future.

 

Calderdale MBC v S & the LSC [2005] 1 FLR 751

Facts

Parents in care proceedings were assessed by a psychologist against a background where the mother had been abused , had a history of relationships with violent men and sexual offenders and hygiene in the family home was poor.  This was not an assessment involving the children and therefore not covered by s 38(6).  The FPC made an order that the costs of the jointly instructed expert report should be allocated on a moiety basis ie 50% to the local authority and 50% to be split between all other parties.

Appeal

The local authority appeals arguing that costs should be shared equally between the parties.  The LSC cross-appealed arguing that the local authority should fund the entire costs of instructing the experts.

Held

The High Court (Bodey J) allowed the local authority's appeal and made an order that the costs be shared equally between all the parties.  The court identified the following factors as relevant to the decision on where the burden of costs should fall:

• Did the report merely go to supporting a case on threshold rather than disposal? If it was more relevant to threshold or was necessary to plug a gap in the local authority evidence because they had not acted with sufficient competence or throughness with respect to their own investigations, then the local authority should probably pay;
• Were the experts already involved as treating experts? (if on the treating side of the line the local authority should pay but if on the forensic side the costs should be shared);
• Should the costs be shared in order to ensure each party had confidence in the integrity of the forensic process?
• Was there any reason other than an unwillingness to pay the costs for a particular party to object to the commissioning of a report? The fact that a party was publicly funded was not a reason for taking a different decision on costs than would otherwise be taken.

 

LB Lambeth v S & C & V & J & Legal Services Commission May 2005

Facts

A maternal grandmother applied for a residential assessment at the Cassel Hospital.  There was unopposed evidence that such an assessment was viable as a result of a positive report from the Cassel. There was no legally significant issue between the parties that the assessment should be pursued.  The issue before the court concerned the funding of such an assessment which was likely to cost £35,000.  The Legal Services Commission indicated that it would object to any order for apportionment of the costs of a s 38(6) assessment and was joined as a party.

Held

The High Court (Ryder J) made an order that the local authority should pay for 50% of the costs and the remaining 50% be split between the certificates of the maternal grandmother and the child.  In his view there was no grounds for objecting to contribution on the basis of the treatment / assessment distinction as that point was dealt with by the Court of Appeal in Re G [2004] 1 FLR 876.  He rejected the argument that the section implied that the local authority should pay - this was merely an assumption and the point had not been taken in the previous cases.   A s 38(6) assessment was not made against the local authority.

Viability assessment is species of s 38(6).  If an assessment could broadly be classified as such and went to further the overriding objective (to enable the court to deal with every care case justly, expeditiously, fairly etc) it would be proper to expect the LSC funded parties to contribute to paying for it.

 

Kent County Council v G 2005 UKHL 68; [2006] 1 FLR 601

Directions under the Children Act 1989 s.38(6) could only be made if they could properly be described as being with regard to the medical or psychiatric examination or other assessment "of the child", rather than if they focused on the child's parent. There was nothing in the 1989 Act that empowered a court hearing care proceedings to order the provision of specific services for anyone. To imply such a power into s.38(6) would be contrary to the division of responsibility that was the cardinal principle of the Act. The purpose of s.38(6) and s.38(7) was not only to enable the court to obtain the information it needed, but also to enable the court to control the information-gathering activities of others. However, the emphasis was always on obtaining information. What was directed under s.38(6) of the Act clearly had to be an examination or assessment of the child in question, including where appropriate her relationship with her parents including degree of attachment, the current parenting skills of the parents and their capacity to change or develop, the risk that her parents might present to her, and the ways in which those risks might be avoided or managed, all with a view to enabling the court to make the decisions that it had to make under the Act. Any services that were provided for the child and the family had to be ancillary to the assessment. The court was concerned with the present situation of the child and any assessment ordered under s.38(6) by a court when making an interim care order was intended to take place and be completed over a relatively short period. It could not have been contemplated that the examination or assessment would take many months to complete. It was not permissible under s.38(6) to give directions for a process aimed at bringing about long-term change.

 

Re V, Sheffield City Council v Legal Services Commission (Intervening) [2006] EWHC 1861 (Fam), [2007] 1 FLR 279

 

Mr Justice Bodey reviewed the question of what contribution could be expected to be made from the publicly funded parties in care cases to the costs of a residential assessment following the spate of cases and changes in LSC guidance and the impact of KCC v G (above). He took the view that all of the issues that a particular unit had been asked to consider amounted to a direct assessment of the child or relationship or mother's capacity to meet needs etc and that the use of words such as ‘support', ‘work with' or ‘address concerns' did not detract from the fact that it was an assessment.  Development and growth in skills were incidental to the assessment not the purpose of it.  Therefore he held that the LSC's own guidance a contribution could be ordered fro the funded parties.  He also commented that even if there was an element of treatment or training embedded in the assessment that did not mean that the court could not order and apportion the costs of the non-training element.  He also laid down some procedural guidance:

 

The court should only make a s 38(6) direction if it had the opportunity to examine in appropriate detail the scope and nature of the proposed assessment.

The assessment provider should be given a clear indication of what is and is not required and told that any teaching, training, therapy or other educative work to be done will not be paid for under court order and will need to be separately negotiated with the local authority.

Clear information needs to have been obtained from the assessment provider of the nature of the work and timescale to be undertaken (bearing in mind that a 2 -3 month assessment is likely to be outside of the bracket that a court would regard as appropriate to order under s 38(6).

A breakdown of the costs of therapy or training should be specifically commissioned.

Parties should endeavour to agree the appropriate apportionment.  Contentious applications should be exceptional.

If the court does have to rule on a contested funding issue then it should apply the guidelines from the authorities taking a broad brush approach but identifying what cannot be properly ordered under s 38(6).  This exercise should be carried out at the hearing of any application for permission.

If any party seeks to assert that the assessment does in fact contain elements of teaching, training or therapy then it should be in a position to establish this to the satisfaction of the court.

If the local authority is not willing to fund any elements of therapy etc then parties wishing for assessments to be carried out need to seek any necessary psychotherapeutic intervention from health resources without delay.

 

 

Re M-H (Assessment: Father of Half-Brother) [2006] EWCA Civ 1864, [2007] 1 FLR 1715

The mother had three older children who had been removed from her care. At care proceedings in relation to the fourth child, his step-father put himself forward as a potential carer. His application for an independent viability assessment was refused by the judge at the final hearing. The care order was made and the local authority were authorised to place the child for adoption outside the natural family.

Held - allowing the appeal, setting aside the care order and directing an independent viability assessment of the step-father - the interests of the child required an exhaustive investigation of his welfare needs and the options open to fulfil them; the judge had cut that investigation inappropriately short, denying himself assistance in the form of thorough and independent social work.

 

Re L and H (Residential Assessment) [2007] EWCA Civ 213

(Court of Appeal; Thorpe and Wall LJJ; 14 March 2007)

The judge had been wrong to refuse the residential assessment recommended by the expert, characterising it as involving therapy, and therefore outside the scope of s 38(6) of the Children Act 1989. An assessment for the dual purpose of providing (1) important information on how well the mother managed the practicalities of parenting and (2) important, if not vital, information on how the parents' relationship bore up under the stress of caring for the child in a supervised environment, was central to the issue of the child's welfare. Before removing children permanently from their natural families and placing them for adoption with strangers, the court should be astute to ensure that the case had been fully investigated and that all the relevant evidence necessary for the decision was in place; Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 required it, as did the underlying philosophy of the 1989 Act. There would, of course, be cases in which a s 38(6) assessment would be a waste of time and public funds: parents who had inflicted injuries on their child but had failed to acknowledge their responsibility or a woman who did not accept that a paedophile partner was a risk to the child, but this was not such a case. The local authority and the guardian might be right in their view that the parents were simply unable to parent satisfactorily, but it was manifestly in the interests of the child to obtain evidence on the issue.

Re K (Care Order)

(Court of Appeal; Thorpe and Wall LJJ and Hedley J; 12 June 2007)

The local authority had decided not to carry out a further assessment of the child's mother because, in the authority's view, she was unwilling to address the fundamental issues of her substance misuse and her violent relationship with the child's father. The local authority in Re K was supported by the child's guardian and the judge at first instance had simply accepted the guardian's submissions that the issue was not whether the mother could parent adequately, but whether she had demonstrated any ability or willingness to address the concerns surrounding her lifestyle.

The Court of Appeal allowed the appeal against the decision not to assess, holding that such an assessment ‘undoubtedly' addressed the issues that fell to be determined at the final hearing, even if it could not address the mother's longer term capacity to change. Thorpe LJ expressed a view that, without an assessment, the final hearing would be ‘a non-event': ‘crucial to the mother's capacity to put any sort of positive case to the judge on 2 July is participation in the assessment and a positive report'. With regard to the reasoning applied by the judge at first instance, he suggested that this did ‘not seem to me to be a sustainable reason for rejecting the application. The assessment undoubtedly addressed the issues before the court, although plainly it was not going to resolve longer term questions of the mother's capacity to change both sufficiently and consistently for the future'.

A Local Authority v M (Funding of Residential Assessments) [2008] EWHC 162 (Fam)

(Family Division; Bodey J; 31 January 2008)
[2008] FLR (forthcoming)

The baby was born to the 15-year-old mother who had a disturbed and troubled background. The father was unknown. The local authority reluctantly allowed the mother and her 19-year-old partner to take the baby to live in the maternal grandmother's home, provided a package of support, and began a core assessment. When they subsequently moved to less satisfactory accommodation, the professionals became concerned and the baby was moved into foster care with the mother's agreement. Although contact went well at first, the local authority soon began care proceedings and a residential assessment was proposed: a preliminary visit by the mother and partner went well and all the professionals involved supported, in principle, a residential assessment over 12 weeks at a cost of £50,000. In response to an inquiry, the particular residential unit expressed itself willing to do an assessment over a 7-week period at a reduced price of £25,000. The authority would not consent to a 12-week assessment at their sole expense but contended that the Legal Services Commission (LSC) were responsible for 75% of the costs. The LSC replied that the Funding Code under ss 8 and 9 of the Access to Justice Act 1999, as amended in 2007, no longer gave the court power to direct that they share the costs of assessment. That stance was accepted by the authority who, although agreeing in principle with an assessment, could not afford to pay. The mother, supported by the guardian, applied for an order under s 38(6) of the Children Act 1989.

Held - granting the application - the authority would not place the baby with the mother at home during an ordinary community assessment because of the risk of significant harm and, without a residential assessment to enable a safe examination of her care, the only realistic outcome was a care order with a plan for adoption. Weighing those competing considerations and bearing in mind that the court must pay careful regard to budgeting matters, the authority should pay for the revised residential assessment of 7 weeks at a price of £25,000 with a report and prognosis at the end. If things went reasonably well and a further 5-week assessment was recommended it was reasonable to anticipate that the authority may have to be required to meet that cost, making a total potential expenditure of £50,000.

Per curiam: although consideration had to be given to the authority's budget, it was not easy for the court to compare the relative importance of a particular residential assessment (a) with other residential assessments which have been or might be applied for and/or (b) with other local authority duties and aspirations.

 

Articles

Assessing Life after Re G byDr Kennedy, Consultant Psychotherapist, Cassel Hospital, Fam Law May 2006

Residential Assessments Under Scrutiny: by Dr Hibbert, MA, MBBS, MRCPsych, DM, Consultant Psychiatrist and Clinical Lecturer - Fam Law May 2007

In Practice: Residential Assessments: Recent Developments by Sally Gore Barrister, 14 Gray's Inn Square, Fam Law March 2008

Costs of Removing Children v Cassel Residential Treatment by Dr Daniel McQueen,  Specialist Registrar in Psychotherapy, Cassel Family Service Fam Law January 2008

Section 38(6) Assessments: The Rise and Fall - And Rise?:  Cyrus Larizadeh, of 4 Paper Buildings, examines the impact of recent cases on the funding of s 38(6) assessments in care proceedings.  

 

 

 

9^th October 2008

Jacqui Gilliatt

Chambers of Janet Mitchell

4 Brick Court

Temple London EC4Y 9AD