G (Child) [2004] EWCA Civ 24

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)
[2004] EWCA Civ 24Case No Case No.: B1/2003/2310Venue Royal Courts of Justice, Strand,, London WC2A 2LL
Between
G (Child)
Before
The President of the Family DivisionLord Justice ThorpeLord Justice LathamJONATHAN COHEN QC and CHARLES HALE (instructed by Messrs Hillman Smart & Spicer ofEastbourne BN21 4RX) for the appellant motherANDREW McFARLANE QC and GEMMA TAYLOR (instructed by Kent County Council LegalServices) for the respondent county councilDate 27 January 2004
[1]THORPE LJ: This appeal focuses on the court's jurisdiction to order an assessment under section 38(6) of the Children Act 1989 and upon the exercise of the judicial discretion once jurisdiction is established. Upon the outcome of the legal issues hangs the future of an eight month old baby, E, born on 8 May 2003. Since her birth she has been looked after by her mother and is still breast-fed. She is represented by her guardian ad litem who, unfortunately, has not been represented on this difficult appeal. E's parents are the appellants against an order made by Johnson J on 24 October 2003 and the Kent County Council are respondents to the appeal. This is the judgment of the Court. The History[2]The mother is 24 years of age. Her first child, J, was born on 13 September 1996. Her second child R was born on 27 December 1998. R died on 13 June 1999 as a result of severe multiple injuries. Care proceedings were initiated to determine J's future.[3]On 19 April 2000 at a preliminary hearing Hogg J concluded that it was impossible to exculpate either the mother or R's father from responsibility for R's death. Johnson J conducted the disposal hearing on 31 July 2000. He made a care order to the East Sussex County Council describing the case as being 'as difficult as any I have tried'.[4]The mother's appeal to this court was dismissed on 29 November 2000. In the course of judgment it was noted by the Court of Appeal that the case was extremely difficult and that the mother should have a real and strong continuing relationship with J. That has transpired and indeed the mother is currently considering applying for an order returning J to her care.[5]The appellants commenced their relationship in August 2001 and began to cohabit in February 2002. At the initial child protection conference on 19 March 2003 in anticipation of E's birth the decision was that E should not be discharged from hospital with the appellants and that an assessment was required in a safe and secure setting of the appellant's ability to care for a baby. The local authority's application for an interim care order was issued on 13 May 2003. The attached care plan proposed foster care until a permanent alternative placement could be found for E. Accordingly on 19 May the parents applied under section 38(6) for an order for residential assessment. Their target was the Cassel Hospital. They attended for outpatient assessment on 24 May. The Cassel's outpatient report of 28 May recommended their admission to the family unit.[6]On 12 June 2003 His Honour Judge Viljoen ordered a six - eight week inpatient assessment to commence on 23 June. He further directed a report from the Cassel to be filed by 8 August and a review of the placement before Johnson J on 12 August. By the same order the local authority obtained leave to instruct Dr Van Rooyen to report on both parents by 31 July.[7]In the event the hearing before Johnson J took place on 14 August. He concluded that the Cassel's written report of 8 August did not demonstrate that the hospital had sufficiently tackled the issues defined in the joint letter of instruction dated 18 June. Accordingly he directed a further six weeks of assessment to be reviewed by him on 2 October.[8]In preparation for that review, Dr Van Rooyen filed a report on 19 September recommending a further extension of the family's stay at the Cassel in the light of significant change in the mother. On 26 September Dr Kennedy filed his full report, the gist of which was that the mother had come a long way but had still a long way to go. He was of the opinion that it was essential to extend the family's residence.[9]On 1 October the local authority amended their care plan and further amendments have been offered since. In short the local authority's present proposal is that E should live with her paternal grandmother and her father and should have two visits a day from her mother, each of up to three hours duration. The local authority would arrange for once weekly psychotherapy for the mother with a view to ultimate rehabilitation.[10]The hearing before Johnson J on 2 October resulted in an order which has a considerable bearing on the present appeal. Accordingly we set out the recital and the first nine paragraphs of the order in full:
"And upon the applicants, Kent County Council agreeing in principle that it would be appropriate for the family to undergo treatment at the Cassel Hospital with a view to implementing a rehabilitation plan in the community in four months, if appropriate. But being unable today to commit to any funding for such treatment; IT IS ORDERED THAT; 1. EG to be made the subject of an interim care order to Kent County Council for four weeks, until 30 October 2003. 2. The family are to remain at the Cassel Hospital until the adjourned hearing. 3. The Cassel Hospital do provide a schedule of projected costs for the proposed treatment by 6 October 2003. 4. (a) If the funding for the Cassel is not agreed, West Kent NHS and Social Care Trust be invited to file a statement setting out the basis of their decision about funding by 15 October 2003. (b) The author of the statement be invited to attend court on 22 October 2003. 5. The applicant local authority do file a statement recording funding an alternative resources by 17 October. 6. Any further evidence to be filed not later than 24 hours before the next hearing. 7. The proceedings case No. FD02C00374 concerning JG and those dealing with EG No. FD03C00338 be listed together for all further hearings. 8. The matter be listed for directions on 22 October 2003 before Johnson J. 9. The matter be listed for hearing on 21 November 2003 before Johnson J, time estimate one day."
[11]The statement directed by paragraph 4 of the order was completed on 17 October. The statement directed by paragraph 5 of the order was handed to the other parties at approximately 1050 on 22 October.[12]On that day the local authority understood that they attended only for directions. That is their explanation for the lateness and the sparseness of the financial evidence that they circulated at the hearing. However Johnson J, who was applications judge and whose list was otherwise light, proceeded to determine the issues then and there rather than on 21 November. At the conclusion of the oral evidence on 22 October he reserved, delivering his considered judgment on 24 October. He held that he had no jurisdiction to extend the S 38(6) assessment. He added that even had he found jurisdiction he would not in his discretion have exercised it. Accordingly he continued the interim care order and dismissed the parents' application under S 38(6).[13]Although he refused leave to appeal not only to the parents but also to E's guardian ad litem, he did order that E was not to be removed from the Cassel Hospital before noon on 29 October to enable applications to be made to this court.[14]Paragraph 5 of his order provided that transcripts of his judgments of 12 August and 24 October 2003 'shall be prepared urgently from public funds'. It is a matter of concern that almost a month later we have no transcript of his judgment, although we have a transcript of the evidence of Dr Kennedy given on 22 October. The Appeal[15]The parents' application to this court resulted in the grant of permission to appeal and of a stay until determination of the appeal fixed for 20 November. That order was made on 28 October on the application of the mother.[16]Mr Peter Jackson QC who represented the father below has very properly sought to avoid unnecessary representation. Accordingly he has filed a written skeleton argument in support of the appeal.[17]The position of the guardian is harder to comprehend. The guardian had supported the parents' submissions on the 22 October and had applied for permission to appeal on 24 October. However on 18 November the guardian's solicitors wrote to this court stating that 'the guardian is minded to remain neutral on the appeal both as to facts and law'. The letter continued that in those circumstances the guardian proposed not to be represented, a proposal which the court accepted. We find it hard to understand the shift in the guardian's position, given that there had been no material change of circumstance between 22 October and 18 November. Whilst efforts by guardians to save costs on appeals are much to be encouraged, in cases where the parent is the appellant and the guardian is also minded to appeal, separate representation for the guardian needs little justification. Indeed it may be helpful to the court to have the guardian as the lead appellant. In the event Mr Crawley, who had appeared before Johnson J on 22 October, attended the appeal hearing unrobed as an interested observer. Having heard the exchanges between the court and counsel throughout the course of the morning, he appeared before us robed in the afternoon to make a number of pertinent observations and submissions for which the court is extremely grateful. The tenor of his submissions supported the mother's appeal.[18]That had been advanced by Mr Cohen QC on two grounds, first that the judge was wrong in law to hold that he had no jurisdiction to order the completion of the Cassel's task and second that he had erred in his conclusions on the funding issue since the local authority had failed to substantiate with evidence the case that they argued. Mr Peter Jackson QC for the father submitted a powerful written skeleton in which he addressed the practical consequences of the order of 22 October, the Human Rights Act, the court's jurisdiction under section 38(6) and the proper approach to the funding factor. Mr Andrew McFarlane QC, for the local authority, submitted that the judge was right in his construction of section 38(6) for the reasons which he had given. He also commended the judge's broad approach to the funding argument. The Evidence Below[19]The case before Johnson J was unusual in that the decision was made at a comparatively late stage in the family's admission. Directions for the disposal of the issue were not given until 2 October in preparation for a trial then intended to be listed on 21 November. Accordingly it is necessary to look with some care at the additional evidence filed in response to the order of 2 October.[20]Dr Kennedy filed a further report dated 15 October. He made these pragmatic assessments:
"First of all, as I have indicated, both parents are doing well with us, despite their difficulties. Mother has continued to work in her therapy sessions and we are gaining more of a picture of her past and present issues. This is despite the fact that they were told by their social worker on 9 October that the local authority would not fund under any circumstances, which, if true, is obviously very upsetting for the family. Despite this, they continue to have a positive outlook. This is not to say that there is a considerable amount of work to be done before the family will be safe enough to go back to their community. However, it is my view that there is a reasonable likelihood of success of rehabilitation provided that the family have intensive input for at least a period of some four months. I suggested four months as a compromise the last time we were in court. I made this offer on the basis that there would be liaison with local services who could take on the work, provided the family were safe enough to do so. However, I am concerned that it has been very difficult to move the supervision arrangements in the hospital on in any but the most minute way. For this family to be able to use a four months period of treatment, clearly the supervision would have to be removed within a few weeks. This is something that I could foresee would be quite possible, provided we were given a clear run, as it were. Up to now, I have not heard of any local package that would involve keeping E with her mother, or indeed, with her father. I understand, at the moment, that there may be a possibility of local therapeutic work, but this would involve the child having to be in a fostering situation, albeit with regular contact. While this might be feasible given no alternative, the fact is that there is an alternative, that is, the possibility of keeping the parents and their child together, while undergoing rehabilitation. While on paper and in theory it may sound an easy thing to simply remove a child from their mother because of funding issues, it would seem quite obvious that this is not in the child's best interests. Also, one would hope to reunite them later. It goes against all principles of child development and it may well be that the lawyers would argue that this would be infringing the child's right to a proper family life. The fact is that E's primary attachment is to her parents, including her mother, and to remove this primary attachment at such a crucial time in her life, would be most undesirable and potentially damaging and to consider this as a reasonable option shows little understanding, in my view, of the nature of child attachments."
[21]The National Health Trust had been directed to file a statement of their decision on funding. What in the event appeared was a report from Dr Ruth Hirons. We have not seen the letter of instruction, presumably from the local authority. We do know that Dr Kennedy had written to her but his letter went unanswered. All that is to be gleaned of her understanding of her task is to be found in the first two paragraphs of her undated report to this effect:
"FG attended an appointment with me on 8 October 2003 in order to talk about her treatment needs, and to consider whether or not West Kent NHS & Social Care Trust is prepared to pay for her to receive further treatment within the Cassel Hospital. I was asked to see Ms G in my capacity as consultant psychotherapist to the Trust and because I was the lead clinician for our personality disorder service for West Kent NHS & Social Care Trust. I have held this post within the Trust for nearly nine years and have been involved in the treatment of people with severe personality disorders within the Health Service and outside it for the past thirty years."
[22]Having recorded her impressions and judgment of the mother, who had attended a single interview, Dr Hirons concluded:
"I did not feel that the severity of her mental health needs were such that she requires inpatient treatment for her condition. West Kent NHS & Social Care Trust provides both outpatient and day therapy within the psychotherapy department. I also have a relationship therapist who could provide partner therapy for Ms G and her partner should this prove helpful. I felt that ongoing work with Ms G would probably be best achieved over a longer period of time and that this work would be best done with her in her own home environment. I understand that social services and Cassel Hospital may wish for a further period of assessment of Ms G's parenting skills and the dynamic strengths of her family group. However, this itself is not a mental health requirement. I would therefore not be prepared to fund a further period of assessment and treatment within the Cassel Hospital from mental health funding but could undertake to see Ms G on her discharge from the Cassel in order to form a therapeutic alliance with her here and in order to consider a long term therapeutic plan for her within this Trust."
[23]Dr Hirons assessment seems to us to have been misdirected. What ultimately the court required was not so much an assessment of the mother's mental health needs by an adult consultant psychotherapist but an assessment of whether all that the mother could offer E outweighed the risk that she might harm her. Obviously the Cassel were bound to be in a much better position to advise on that difficult balance than Dr Hirons. There is therefore an impression that the direction of her report was at least in part to support the local authority's case, seemingly developed between the commitment expressed in the order of 2 October and their announcement of 9 October, that local community services were adequate to meet the needs of the family. However we question whether what Dr Hirons was offering and what the local authority were proposing contained the essential ingredient of child orientated assessment, so vital to the court in the determination of these difficult cases. If mother was to receive once weekly psychotherapy, and both parents some level of partner therapy, the therapists involved would not be undertaking any assessment and would be unlikely to agree to any involvement in the court case.[24]Finally there is the evidence of the local authority so belatedly circulated. Since it is succinct we record the statement of Jane Grogan in full:
"1. This statement has been prepared for the hearing listed in the High Court on 22 October. The statement has been prepared following receipt of the costing of the treatment proposal sent by the Cassel Hospital to Kent Social Services on 21 October 2003. 2. The schedule lists a final cost for four month's treatment of Ms G and Mr C as £61,274.00. This cost is in addition to the costs for the assessment process ordered at court, estimated to be in excess of £100,000,00. 3. Please refer to the statement of the social worker Nikki Shaw detailing the views of the West Kent NHS and Social Care Trust in respect of the assessed need of this treatment as undertaken by Dr Ruth Hirons. Dr Hirons does not consider that Ms G requires inpatient treatment, and has identified local community resources that can fulfil this requirement. 4. I have detailed in my previous statement to the court dated 11 August the need for the local authority to provide value for money in respect of very limited resources. Kent Social Services has to ensure that the statutory duties and responsibilities of the local authority are maintained. 5. The district budget for 2003.04 is approximately £1.88M. This has to provide for all looked-after children in the district and provide services for children on the Child Protection Register as well as preventative services for a population of approximately 104,000 people. 6. The cost of the assessment process at the Cassel Hospital has created additional pressures on this year's budget, and savings have had to be found from other budget headings. This has included maintaining high staff vacancy levels and postponing plans to extend preventative services in the district in order to achieve a budget balance for this financial year. 7. Kent Social Services are not able to assist in the funding for the proposed treatment programme at the Cassel Hospital for this family. Appropriate community resources are available and the social work report currently before the court details the plans for E during the delivery of this treatment programme."
[25]The only oral evidence given on 22 October that has been transcribed came from Dr Kennedy. We will return to that in the context of an appraisal of the reasoning of Johnson J in his judgment. The Judgment on Jurisdiction[26]At the outset Johnson J referred to paragraphs in Dr Kennedy's report of 26 September which demonstrated aspects of the mother's dangerousness that had been established by the work done at the Cassel in response to the judgment of 14 August. He commented on Dr Kennedy's assessment of the mother's subsequent progress in terms that imply an impression that Dr Kennedy was unduly optimistic of what had and what might be achieved. He expressed concern that Dr Kennedy had on 2 October pragmatically reduced the family's further stay to four months.[27]He recorded the costs of a further four months stay and the guardian ad litem's submissions in support of that stay. He noted Dr Hirons' refusal, on behalf of the NHS Trust, to contribute to that cost. He recorded the views of Dr Van Rooyen in her September report. He repeated his concerns at her acceptance of Dr Kennedy's pragmatic reduction of the future stay to four months. He recorded the local authority's proposals in their amended care plan.[28]He then posed the question whether the direction for the completion of the Cassel admission was within the court's jurisdiction under section 38(6). He proceeded to review the authorities. Then he stated his conclusion in the following passage:
"It seems to me that I should stand back from the facts and reports to enable me to decide broadly and not narrowly whether what is proposed is assessment or therapy. It seems to me that in the circumstances of this case what is proposed falls very clearly on the side of therapy rather than assessment."
[29]This was, of course, not a discretionary conclusion. How was it reasoned? The judge relied on the terms of Dr Kennedy's report of 26 September, in which at several points Dr Kennedy had referred to the completion of the period of initial assessment and the desirability of providing intensive therapy for the mother focussed both on her personality difficulties and on her relationship with the father.[30]That report had been filed in preparation for the hearing of 2 October at which there was a consensus that the continuation of the admission was appropriate and would continue at least until funding issues were argued out on 21 November. The September report had then been supplemented by Dr Kennedy's report of 15 October and by his oral evidence. In the October report Dr Kennedy had written:
"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."
[31]Then in his oral evidence Dr Kennedy returned to the labels of assessment and therapy. In his evidence in chief there is this exchange with Mr Cohen:
"Q – I would like to ask you, if I may, about the work that is done at the Cassel in the context of the debate which lawyers have in terms of assessment and treatment? A – As his lordship mentioned, he has my views two years ago which in some ways haven't changed but I have thought of other things since. In terms of what I feel is relevant to this particular case is that this is a highly complex case involving initially very high levels of risk and high levels of anxiety because of the previous child's death, great doubts about the mother's capacity. She has come a long way but, in my view, has a long way to go. I think it is going in the right way and the father of course doesn't have such a history and that is also a positive factor. There is a long way to go and while there has been change I still have to assess how much change is sustainable. The phrase I came up with in discussion with my medical director of a big trust who happens to be a child psychiatrist and like me he was appalled at the removal of the child and then rehabilitating later. She thought that was absurd. She came up with the idea that you are assessing the sustainability of change with these kinds of cases, not in ordinary cases. One doesn't say that goes on for ever but it goes on significantly more in these kinds of situations than the ordinary runof- the-mill, if you can say that, problem family. If we were able to carry on, in a way there is the continuity. There is the kind of theme of continuity between what is happening and what will happen in the next four months. I don't see that there is a radical break when we change trains, as it were, and the staff change and the assessing changes. It is seen as continuity. Q – So is the work that you will do in what is sometimes called stage two at the Cassel different from the work which you do in stage one? A – It wouldn't be different. Because I have agreed also as a compromise for a four month period, it was pragmatic out of court, out in the corridor, ideally I would much prefer longer as you know, because I think that would be much wiser but I was thinking I could do enough to get them back into the community if I am given a free hand with supervision and with the whole setting and if the local people are then as they are to carry on the work then that might well be acceptable. I hoped."
[32]In cross examination he reiterated his contentions when he said:
"In fact nothing significantly is different in the sense that the mother will continue to have her sessions, the parents will continue to have the help, we will continue to treat but we will continue to need to assess very carefully the ongoing change, if it is sustainable and are they safe enough to go into their community."
[33]First in our judgment the totality of Dr Kennedy's evidence did not support the judge's conclusion on the jurisdiction issue. 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, as we discuss more fully in paragraph 48 below. The judge's focus should not have been on the report of 26th September, the relevance of which was much reduced by Dr Kennedy's later contributions.[34]Second, in assessing the facts to which he had to apply the authorities, in our judgment Johnson J gave insufficient weight to the following: i) On 2 October the local authority had accepted an extension of the admission for seven of the sixteen weeks that were then pragmatically proposed by Dr Kennedy. ii) By 22 October the family had been undergoing assessment and therapy at the Cassel for four months. Dr Kennedy was advocating an extension of some thirteen further weeks. iii) The abandonment of the assessment and therapy was opposed by the only available expert evidence, namely that of Dr Kennedy, Dr Van Rooyen and the guardian ad litem, although the guardian's position was not as strongly held as the doctor's.[35]The considerations to which we refer in the previous paragraph seem to point to a different conclusion, unless the court was constrained by statute to decide otherwise. The Authorities[36]That brings us to a review of the authorities construing section 38(6) of the Children Act 1989 which provides:
"Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment."
[37]The proper approach to section 38(6) was settled by the speech of Lord Browne-Wilkinson in the case of Re C (Interim Care[38]Next Lord Browne-Wilkinson made it plain that the assessment of the child means assessment of the child within the family. As he said at 8E:
"Next, it is true that section 38(6) and (7) only refer to the assessment 'of the child' and not, as is proposed in the present case, a joint assessment of the child and the parents, including the parents' attitude and behaviour towards the child. But it is impossible to assess a young child divorced from his environment. The interaction between the child and his parents or other persons looking after him is an essential element in making any assessment of the child."
[39]Finally, he considered the resource argument in the following passage at 9E:
"In the present case, the proposed residential assessment is going to cost some £24,000 and the local authority, taking as it does a gloomy view of the result of the assessment, considers that expenditure on that scale is not a sensible allocation of its limited resources, a decision which it is far better qualified to take than the court. We accept the force of this submission but it proves too much. Mr Harris was not able to argue that if the court directed a medical examination of the child himself, which examination would be very expensive, the local authority could refuse to carry it out simply on the grounds of the expense involved and the unwise allocation of limited resources. In such a case, it will be for the court to take into account in deciding whether or not to make an order for the medical examination the expense that it involves. If that is so, the issue of resources cannot affect the proper construction of s 38(6). The consideration of the resource consequences of making the order must be the same whether the court is making an order for medical examination of the child or an order for the other assessment of the child. Therefore it is impossible to construe s 38(6) in the narrow sense simply because the court is less suitable than the local authority to assess the financial considerations."
[40]These strands were summarised in this conclusion:
"In my judgment, therefore, s 38(6) and (7) of the Act are to be broadly construed. They confer jurisdiction on the court to order or prohibit any assessment which involves the participation of the child and is directed to providing the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order. In exercising its discretion whether to order any particular examination or assessment, the court will take into account the cost of the proposed assessment and the fact that local authorities' resources are notoriously limited."
[41]That speech set the proper course to be followed by this court and by courts of trial in the years ahead. The distinction between assessment and therapy which has proved troublesome was not considered by their Lordships. It emerged in a first instance decision of Holman J some l8 months later. The case is Re M (Residential Assessment Directions) [1998] 2 FLR 371. Holman J determined an application for a residential assessment at the Cassel Hospital. In applying the decision of the House of Lords Holman J stated "certain prerequisites to making any direction under section 8(6)". Within the four prerequisites that followed no distinction is drawn between assessment and therapy. That comes in the judge's conclusions when the judge, having found that the initial phase of the Cassel admission fell within the terms of the section, continued:
"However it is clear in my view that after about 8 weeks the Cassel programme clearly changes from an assessment to a treatment phase. As I have already said in his letter of 17 November 1997, Dr Kennedy clearly distinguishes between 'the assessment phase' and 'the course of intensive treatment'. In my judgment I have no power now to direct an assessment for longer than, on the facts and evidence in this case, eight weeks. I accept the possibility that at the end of 8 weeks a genuine case may exist for a further short period which could genuinely be characterised as further 'assessment'. But at some point assessment necessarily merges into treatment, and at that point the power of the court ends."
[42]This court drew a similar distinction in the case of Re B (Psychiatric Therapy for Parents) [1999] l FLR 701. The local authority's appeal against the making of a s 38(6) order succeeded in part because the trial judge had ordered an experiment proposed by the guardian without giving much consideration to the possibility of a referral to the Cassel Hospital to carry out an assessment. There was no reasoned rejection of that option. At 709 Thorpe LJ said:
"The Cassel Hospital is the resource of ultimate expertise and experience in this field, particularly for the residential psychotherapeutic assessment and treatment of parents and children as a whole family unit. Their expertise in assessing whether or not a family is treatable is unrivalled."
[43]It is, we think, implicit from the judgments that the court regarded a referral to the Cassel as falling within the court's jurisdiction under section 38(6).[44]The decision of Holman J was first considered in this court in the case of Re D (Jurisdiction: Programme of Assessment or Therapy) [1999] 2 FLR 632 . At 636 in the course of the judgment of Thorpe LJ, whilst supporting Holman J's distinction between assessment and therapy, he doubted whether, in the case of the Cassel Hospital model, the court's jurisdiction was limited to order the eight-week initial assessment.[45]The next decision in this court is that of Re C (Children) (Residential Assessment) [2001] 3 FCR 164 , an appeal against the judge's refusal to direct an assessment at the Cassel Hospital. The judge had no doubt at all that he had jurisdiction to order the referral to the Cassel but upheld the local authority's funding objections in the exercise of his discretion. Although unnecessary for the determination of the appeal Thorpe LJ endorsed the judge's approach to the issue of jurisdiction. He pointed out that decided cases suggested that the assessment model adopted by the Cassel fell within the bounds of s 38(6). In relation to the line suggested by Holman J at the conclusion of the eight week initial phase he said:
"It seems to me that it is difficult to contend that the essential character of the referral is lost at the conclusion of the first period of assessment."
[46]On the real issue before the court, the discretionary issue of funding, the President said this:
"The evidence provided on costs by the local authority was one letter provided two days before the hearing, with no oral evidence to back it up and no opportunity either for the parents or for the guardian to test such evidence by way of the usual form in the English courts of oral cross-examination … That is, in my judgment, a very unsatisfactory way for a local authority to provide evidence on a crucial issue; indeed, as it turned out, the only effective issue before the court."
The local authority's shortcomings in the present case were equally if not more extreme.[47]Finally there is the case of Re B (Interim Care[48]The approach to section 38(6) has received what with the advantage of hindsight appears to be piecemeal consideration largely dictated by the circumstances in which the issue has arisen. In a previous judgment we have doubted the value of the four prerequisites suggested by Holman J in M , doubts echoed by Charles J in his more recent judgment in BCC v L . The danger of Holman J's prerequisites is that they have often been understood by subsequent trial judges as restrictive and have deflected attention from the essential construction settled by Lord Browne-Wilkinson in his speech in Re C . Counsel in the present appeal have criticised the distinction drawn between assessment and treatment as an unwarranted judicial gloss intended by neither the legislature nor the House of Lords. For instance, Mr Peter Jackson in his written skeleton states:
"Courts at first instances should be considering whether the proposed course of action is an appropriate measure to provide the court with material necessary for its decision. If the proposal meets this criterion, it is immaterial if it also leads to provision of accommodation training therapy medical treatment social support or any number of any other desirable activities."
We are in no doubt that that submission goes too far. However purposive the construction the statutory language has not that degree of elasticity. 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? That formulation concentrates the attention of the trial judge on the purposive construction of section 38(6) settled by Lord Browne-Wilkinson. In reality a permissible assessment to enable the court to obtain the information necessary for its own decision is likely to contain, or at the least may well contain, the provision of a variety of services, supports and treatments with or without accommodation. Applications under section 38(6) will fail if what is proposed is not required to enable the court to obtain the information necessary for its decision, if the child is only peripherally involved, if what is proposed is a bare treatment programme for one or both parents or if the cost of what is proposed has been established to be prohibitive. The perspective must always be that of the court rather than the perspective of the family. What the court commissioning the admission will see as assessment may well be experienced by the family, admitted as patients, as therapy.[49]Another reason for disapproving the formulation of the determinative issue as assessment or therapy is that it has been demonstrated to lead to adversarial fencing, elaborated by fundamental differences of approach and terminology between the experts who are entangled in the exchanges and the lawyers who conduct them.[50]In many of the reported cases the application before the court sought a referral to the Cassel Hospital. Such a referral has yet to be refused on jurisdictional grounds. Indeed the tenor of the dicta in the Court of Appeal suggest, at least by implication, that it is within the court's jurisdiction to order such a referral. The court has twice previously doubted the distinction which Holman J sought to draw between the initial 8-week admission and the second prolonged phase of the admission. Now that the question is directly before the court we plainly reject that distinction. In the case of Re D the court posited a number of instances in which a fundamental objective within an assessment programme was to bring about change for the better in the skills of a single parent or in the relationships within a dysfunctional family. The present appeal provides an example of another category of case in which the psychotherapeutic engagement with the family over an extensive period is an essential element of the assessment. Judicially established fact in relation to the life and death of a previously born child led the local authority to an initial conclusion that it would be unsafe to expose another child to the mother's care. So the essential task of the Cassel was to assess whether the mother, in the context of the subsequently created family, is to be excluded as the natural carer for E in the community on the grounds that her past history presents an unacceptable risk of future harm to E. On the facts of the case it seems to us both artificial and legalistic to label the first period of admission as assessment and the second period of referral as therapy. The Human Rights Act 1998[51]The views that we have expressed on the construction of s 38(6) are undoubtedly fortified by the advent of the Convention for the Protection of Human Rights and Fundamental Freedoms (the E.C.H.R.) within our domestic law. An application for a direction under section 38(6) may, in our judgment, potentially engage both Article 6 and Article 8. In many cases in reality the ultimate fate of the child depends upon the outcome of the section 38(6) application. For the parents the only realistic prospect of averting a care order and a freeing order is the successful completion of a referral directed under section 38(6). In the present case if the order of Johnson J were to stand, E's prospect of upbringing by her parents would be, if not eliminated, much diminished.[52]The only case to which we have been referred that considers the impact of the E.C.H.R. on applications under S 38(6) is BCC v L , a decision of Charles J handed down on 7th November 2002.[53]In the course of his judgment, having cited the bulk of the S 38(6) authorities that we have considered above, Charles J continued:
"In my judgment the cases on section 38(6) and the guidance in Re S; Re W [2002] 1 FLR 815 (and the cases referred to therein) should be read with the passages at page 327 of L v UK [ECHR 2000] 2 FLR 322 relating to fairness of proceedings, paragraph 99 of the speech of Lord Nicholls in Re S; Re W … and paragraph 119 of the judgment in PC & S V UK [2002] 2 FLR 631 ."
[54]None of the cases cited by Charles J seem to us to be directly in point. However in the case of PC and S v UK the statement of general principles between paragraphs 113 and 120 reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State's case for the permanent removal of a child from his parents.[55]The purposive construction declared by Lord Browne-Wilkinson seems to anticipate the advent of the Human Rights Act 1998. However, his observation in relation to funding points may require revision in the light of the ECHR rights of the family members. At present, for policy or other reasons, the State chooses to arrange public finances on the basis that the cost of the admission of a family to the Cassel must be borne by the local authority budget or the National Health Trust budget for the area in which the family is ordinarily resident. Plainly the Cassel is not a local resource. It accepts referrals and admissions without discriminating on the grounds of locality. The funding of the Cassel for the benefit of families and of the State's interest in preserving family life might merit reconsideration by relevant departments such as Health and Education and Skills.[56]In summary, therefore, our review of the authorities leads us to the conclusion that on the evidence Johnson J was wrong in law to hold that he lacked jurisdiction to order the completion of the Cassel admission. The Exercise of the Judge's Discretion[57]Finally we record the judge's approach to his undoubted discretion to refuse an assessment order on funding or other grounds. He addressed these issues no doubt because he had heard submissions on them and lest his conclusions on jurisdiction were to be challenged.[58]How then did the judge deal with the local authority's primary ground of resistance, namely the excessive or disproportionate cost of completing the Cassel admission? First he referred to the fact that "all councils and this local authority in particular are under considerable financial pressure". Next he read into his judgment a previous statement made by Mrs Grogan on 11 August for the purposes of the hearing on 14 August 2003. He said that her evidence had not been the subject of challenge. Accordingly he concluded that the ordering of its financial priorities was the duty and responsibility of the local authority and that it was neither appropriate nor permissible for a judge to inquire into or review such decisions. For those reasons he upheld the local authority's primary opposition to the section 38(6) application.[59]Turning to discretionary factors other than funding that would have persuaded him against making the order sought, he referred to 'the time that has passed since the death of R, the late developments in respect of the mother and the costs that have been or would be incurred'.[60]Next he considered paragraphs 33 and 34 of the judgment of Hale LJ in Re C and B (Care[61]Let us first consider his approach to the local authority's funding objections. It must be remembered that the local authority had been ordered to file the evidence upon which they wished to rely by 17 October and had signally failed to do so. At the conclusion of the judgment junior counsel for the mother, Mr Hale, objected that Mrs Grogan's evidence was challenged fundamentally and that Mr Cohen had been denied the opportunity to cross examine her because she had not attended the hearing. Johnson J then said:
"The view I formed was based upon the generality of the situation and what is common knowledge that social services resources are seriously underfunded – I read Mrs Grogan's evidence simply by way of observation and not as the basis for exercising my discretion. I relied upon my understanding myself as a judge all too aware of the resources difficulties."
That response is in our judgment unsustainable. Mrs Grogan's evidence was limited to constraints on the Tunbridge Wells District, serving a population of 104,000 with an allocated budget of £1,88m. Clearly the mother's counsel were entitled to test the wider context of the county budget and its provision for exceptional items, such as residential assessment out of the county. Whilst accepting the judge's entitlement to take judicial notice of the general matters to which he referred, our conclusion is that in common law terms the parents were denied a fair trial on the issue of funding. Equally on this issue there was a breach of their rights under Art 6(1) of the ECHR.[62]What then of the judge's approach to other factors affecting a discretionary conclusion? That the mother might have caused or contributed to R's death, leading to the consequential obligation to protect another child, is only the content of one scale pan. Into the other had to go the presence of the father, whose history was unblemished, the progress that the mother had made at the Cassel and the unanimous expert advice against terminating an assessment so well advanced. That was the balance that would ultimately decide E's future at a final hearing. On 22nd October the discretionary question for Johnson J was whether the continuation of the assessment was reasonably required to enable the judge at a final hearing fairly and fully to balance the arguments for and against the parents as primary carers for E in the community.[63]In summary we cannot share the approach which Johnson J indicated that he would have taken had he exercised a discretion. We recognise that he had conducted a number of major hearings and had acquired an understanding of the developing case and of the participants that we cannot match. However, a remission to him to exercise a fresh discretion on a properly prepared and presented case from the local authority is unthinkable. As Mr Jackson observed in his written skeleton, had the local authority from the outset diverted their expenditure on litigation into funding a full residential admission for the family at the Cassel there would have been considerable reduction in public spending. Equally the timescale precludes remission. Finally, given the unanimity of the expert opinion, the discretionary outcome seems to us to be transparent. We would allow this appeal and grant the application which the judge refused.[64]This is a result that reflects the relatively unusual facts of the case. However, for the future:(i) the decision of Holman J in re M should not be treated as a guideline case;(ii) the impact of the Human Rights Act 1998 on the determination of S 38(6) applications must be recognised;(iii) a case advanced by a local authority to establish that the cost of the assessment sought is excessive or disproportionate must be substantiated by evidence and the witnesses relied on must be available for cross examination, unless otherwise agreed or directed. The case may not be accepted if presented only by reference to the budgets for some district within the local authority's territory.

Order

Residential Assessment) [1997] l FLR 1. Having stated that 'the Act should be construed purposively so as to give effect to the underlying intentions of Parliament', he continued at 7G: "The purpose of s 38(6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority's application to take the child away from its parents by obtaining a care order. To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court's judicial decision." Order: Directions) [2002] 1 FLR 545 . Mr Peter Jackson QC, for the appellant mother, specifically relied upon the Human Rights Act l998 as buttressing his client's entitlement to a residential assessment. In the event the appeal was allowed, very much on the facts, without any consideration of those submissions. However two paragraphs of the judgment of Buxton LJ merit citation: "[35] I agree as far as s 38(6) is concerned, I respectfully draw two conclusions from those observations. The first, as emphasised by Lord Browne-Wilkinson, is that in the case of an interim care order, the function of an order under s 38(6) is to inform the court, in any way that it thinks necessary or appropriate, in the performance of its duty to decide whether or not there should be a final care order. [36] Secondly, looking at the matter purposively, it seems to me clear, that the court is 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. In this case, as my Lord has pointed out, the judge did not have the benefit either of the submissions or of the information that I have received in respect of the available resources and necessary circumstances of the assessment of this small child before the question of a final order is considered." Order: Future Harm) [2001] 1 FLR 611 . However he observed that there was "a real possibility that the mother killed R in June four years ago. The local authority has a compelling – some might say an overwhelming – duty to this third child". He commended the local authority for their approach which he concluded was "an entirely proportionate response and a necessary concern to the democratic obligation of the local authority".

Cited in 3 later judgments