Local Authority v M [2008] EWHC 162 (Fam)

Case No MB07C02128[2008] EWHC 162 (Fam)
IN THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Date 31st January 2008
The Combined Court
Russell Street
Middlesbrough
Before
THE HONOURABLE MR. JUSTICE BODEY
Between
Local AuthorityClaimantMDefendant
A Local Authority
- v –
M
(Funding of Residential Assessments)
From the tape transcription of
J.L. Harpham Limited
Official Court Reporters and Tape Transcribers
55 Queen Street
Sheffield S1 2DX
APPEARANCES:
For the local authority: MISS RICHARDS
For the mother: MISS G. MATTHEWS
For the mother's partner: MR. D. SCOURFIELD
For the Children's Guardian: MISS C. FAGAN
JUDGMENT
31st January 2008
A Local Authority -v- m (Funding of Residential Assessments)
JUDGMENT
[1]This is an application by a young mother in ongoing Care proceedings for an order that there be a residential assessment of herself and her child, E, who was born on 28 February 2007 (rising one year of age). The social workers and the Children's Guardian all support the application. But how is such an assessment is to be funded?[2]I shall state the background in minimal detail. For simplicity I shall refer to events as though they are facts, whereas they have not been proven as such and the parties may have challenges. That must be borne in mind whenever this Judgment is read.[3]The mother of E (“M”) was born on 11April 1992 and is therefore aged 15. She says that the father of E is a refugee from Eastern Europe of similar age to herself. His whereabouts are unknown. When the mother was six weeks pregnant she met her present partner, (“C”), who is now aged 19. He moved in to live with M at the home of the maternal grandmother (“D”) and helped M through the pregnancy. He was present at E's birth. He and M remain in a relationship and now live together in private rented accommodation. Both M and C wish that he, C, should be a part of the intended residential assessment. The residential unit concerned (“CH”) has accepted this, although with the condition that they would sleep in separate beds, given M’s age.[4]M's family have been known to the social services since 1987, five years before M's own birth. She had two elder half-siblings, now aged 22 and 21 respectively, who were removed from D's care as children and were subsequently adopted. D then had one other son, M's half-sibling (now aged 18) before having M in 1992. Putting it very shortly, M has herself had a very disturbed and troubled background, involving physical and emotional abuse, with allegations and retractions of sexual abuse. At a pre-birth conference a week or so before E's birth, the concerns of the professionals were expressed briefly as follows: that M was not accessing any education; that she had a history of self-harming; that she had a 19 year old boyfriend (C) living with her at D's house; that she represented as a vulnerable young person, who had attempted an overdose in October 2005; that D (M’s mother) had suffered from anxiety and depression for some time and had also overdosed in the past.[5]Following E's birth there was considerable opposition from the family to the local authority's plan that E should go into voluntary foster care whilst M and C were assessed. With reservations, the local authority allowed E to live with M and C at D's home. It arranged for regular welfare checks with a package of support and it started a core assessment. However, difficulties arose with these plans as a result of failed appointments by M, C and D. There were some incidents of verbal hostility to the social workers and problems regarding cleanliness and hygiene. These problems were compounded by the inconsistent attitude of D, who was sometimes vociferously supportive of M and sometimes rationally supportive of the local authority. An additional concern was the existence on the scene of D's former partner, W, whom M has accused of regular sexual abuse of her (an allegation on occasion retracted). He was believed to have ongoing access to D's home.[6]On 21 August 2007 M and C took E into the Accident and Emergency department of a local hospital saying that E had slipped out of M's hands by accident and had fallen. Fortunately she had suffered no harm. Later on however, W alleged (and it remains but an allegation) that M and C had been throwing E from one to the other when she was dropped.[7]On 17 September 2007, following an argument with D, M and C vacated D’s home with E. They moved into C's sister's former home, C having moved into supported accommodation. The local authority continued to make regular welfare checks. The accommodation itself was unsatisfactory, lacking adequate heat and hot water. E was found to be cold and there were concerns that she was being overfed. On occasions she appeared tired and lethargic. Further, a young man was found staying at the property about whom the local authority had reservations owing to his own personal difficulties, including his having been the possible victim of sexual abuse.[8]On 24 September 2007, a Child Protection Conference decided that the mother should be asked to agree to E being accommodated under S.20 of the Children Act 1989. She reluctantly agreed and E has been in foster care ever since.[9]Recently, with a view to preparing M, C and E for the proposed residential assessment, contact has been increased by the local authority. It now takes place five days a week, from 9 a.m. to 4.30 p.m. Apart from some failed appointments, it has been going encouragingly well. For example, there are references in the Chronology to E appearing to have a bond with both M & C: “… The laughs and giggles that came from E were very contagious and everyone was laughing along. There was a lot of interaction during this contact and both M and E appeared to bond very well."[10]On about 2 October 2007, M and C moved into their present rented home. It is much more suitable than their previous accommodation and they have taken pride in it.[11]These care proceedings started as follows. On 21 November 2007 at a supervised contact session, both M and D became angry with the contact supervisor. They shouted that they could not be stopped removing E, as the local authority had no order in its favour. When M tried to leave with E, the Police were called. M said that she felt she could not cope any longer and made threats of self-harm. The contact supervisor described M as "low, depressed and very immature in her thought process". Eventually the incident was resolved. M calmed down, permitting E to be returned to the foster carers and D apologised for her own outburst. As a result of this incident, on 22 November 2007 (the following day) the local authority issued these proceedings.[12]At a court hearing earlier this year, M's advisers proposed a residential assessment. A Viability Assessment by the CH residential unit was directed, which assessment is now before me. It concludes that M, C and E do fall within the CH Unit’s remit for a residential assessment and it offers them places, subject to a preliminary visit. It states: "There is no doubt that an assessment of this kind would give clarity in relation to M and C's strengths and areas of difficulty as parents and identify their individual and couple needs. The assessment would also provide information in relation to their respective abilities to function and develop independence outside of M's family".[13]The recommended preliminary visit by M and C CH has since taken place and it is common ground that it went very well. Hence all the professionals involved support a residential assessment at CH which, over twelve week period, would cost about £50,000. In view of the funding problems discussed later in this Judgment, I asked the parties to see whether CH would agree to a shorter period of assessment, with a report at the mid-way point. I also asked for enquiries to be made of any independent social workers who might be prepared to undertake some 24 hour work with M, C and E; further, that enquiries be made as to whether funding might be available from any other source, e.g. from the relevant Primary Care Trust, or from the Education Department of the local authority.[14]Those enquiries have been made but only one has borne fruit: namely that the CH unit is willing to do a residential assessment of M, C and E of seven weeks duration at a reduced price of £25,000. That remains the only proposal if any safe and realistic assessment is to be carried out to help the court decide at the final hearing whether, with appropriate support, M and C can care for E sufficiently safely and well; or else whether E should be placed for adoption.[15]The local authority does not consent to an order for a residential assessment at its sole expense. It says that it cannot do so, given its straitened financial position as set out below. But pragmatically (since it supports this way forward in principle) it has not proactively opposed the S38(6) order sought by M and the Children's Guardian.[16]S38(6) reads:
“Where the court makes an interim care order … it may give such directions …as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …”
. The Act does not however address the question of how such an examination or assessment is to be funded.[17]By 2007, case law had established that the court could direct that the costs of a residential or other assessment were to be divided between the parties, provided that it fell properly within the broad definition of an assessment and was not primarily intended to provide therapeutic, educative or other such services: see Calderdale MBC v. S & the Legal Services Commission [2005] 1 FLR 751; Lambeth London Borough Council v S [2005] 2FLR 1171; Kent County Council v. G [2006] 1 FLR 601 and Sheffield City Council v. V & the Legal Services Commission Intervening [2007] 1FLR 279.[18]However, following a governmental consultation in 2007, the Funding Code under Sections 8 and 9 of the Access to

Justice Act 1999 was amended as from 1.10.07 to provide that:

"The following may not be charged under any level of service unless authorised by a specific order or direction from the Lord Chancellor: (i) all costs or expenses of or relating to the residential assessment of a child; (ii) all costs or expenses of or relating to treatment, therapy, training or other interventions of an educative or rehabilitative nature."
A 'residential assessment' is defined as:
"... any assessment of a child, whether under Section 38(6) of the Children Act 1989 or otherwise, in which the child, alone or with others, is assessed on a residential basis at any location other than his or her normal residence. It also includes an assessment or viability assessment, whether residential or not, preparatory to or with a view to the possibility of a residential assessment."
Only residential assessments are excluded in this way. The cost of non-residential assessments (which have the same objective of providing the Court with the necessary information to carry out its duties) can still be shared out under the case law referred to at para 17 above.[19]The Legal Services Commission was served with notice of M's application for a residential assessment order and was given leave to intervene to respond to it. This was because the local authority’s original contention was that the costs of the assessment should be shared equally between the parties, which would have meant the Legal Services Commission being responsible for 75% of it. The Commission thereafter wrote to the local authority explaining why it says the court no longer has power to direct that the costs of a residential assessment be shared such that the Legal Services Commission has to pay for any part. The letter sets out the legislative background and describes the Funding Code as being binding upon the court, having been laid before both Houses of Parliament in July 2007 pursuant to the Access to Justice Act 1999.[20]After careful considered of this information, the local authority replied on 23 January 2008 accepting that the Legal Services Commission cannot now be ordered to contribute to the costs of the intended residential assessment. So the Legal Services Commission has taken no part in these proceedings. No party before me has taken issue with this stance adopted by the Legal Services Commission. It has been accepted as a given at this hearing that the court can no longer direct a sharing of the costs of a residential assessment such as to achieve a contribution from the Legal Services Commission. Since neither M nor C has any money, this leaves realistically only one party to pay: the local authority.[21]It says however that it cannot afford to do so. The Social Care Budget, which would pay for such an assessment, is already overspent and needs monies transferred into it from elsewhere within the Council's budget. No additional resources, I am told, have been provided to local authorities to offset their greater exposure to the expense of funding of residential assessments. In a letter dated 24 January 2008, Director of Resources points out that, although the local authority is only a small unitary authority, it has a high level of deprivation within its area. With an increase in government grant for 2008/2009 of approximately £3.4 million, plus a proposed Council Tax increase for the year of a further £2.2 million, and if the Council can make targeted savings of a further £1 million over the year, there is a predicted budget deficit for the year of approximately £2.9 million. Put another way, I am told there are an average of 4.25 residential assessments ordered per annum in cases where this local authority is applicant. The local authority has averagely been required to contribute £12,500 per assessment, ie 25% of the total cost of approximately £50,000 for each assessment (the other 75% having presumably been borne by the Legal Services Commission as disbursements on the public funding certificates of the other parties). If the local authority now has to pay the full £50,000 of all ordered residential assessments, this would increase its liability by £37,500 per assessment, ie (at 4.25 assessments per annum) an increased burden of £160,000 per annum. The local authority says this is unaffordable, except through serious sacrifices of other public services.[22]The court must obviously pay careful regard to these budgeting matters and it seems there may be deserving cases nowadays where a residential assessment is simply unaffordable. Here, however, the local authority itself positively regards the intended residential assessment as the way forward. It would not presently countenance E being cared for by M and C at home during the course of an ordinary community assessment, because (based on the sort of familial problems outlined above) it considers there would be a risk of significant harm to E. It difficult to dissent from this view. It is equally difficult to dissent from the submission of Counsel for M that, unless a residential assessment is directed here to enable safe examination of(a) M and C's care of E,(b) the degree of attachment which E has to M and C, and(c) the dynamics of M and C’s relationship together, then it is almost impossible to see any realistic outcome of these proceedings other than a Care Order on a plan for E’s adoption.[23]Weighing up all these various and competing considerations, I conclude that the local authority should pay for the revised residential assessment in question i.e. the seven week period at a price of £25,000, with a report and prognosis at the end of that time. I will today fix a further hearing before myself in seven weeks' time so that, if there is any dispute about what should happen thereafter, it will be capable of determination without delay. If things have gone reasonably well, and a further 5 weeks of assessment is recommended (ie making up the total of 12 weeks originally envisaged) it is reasonable to anticipate that the local authority may have to be required to meet that cost, making its total potential exposure up to £50,000.[24]I observe that this case amply justifies the opposition of the Family Justice Council to the amendments which have recently been made to the Funding Guidance. The Family Justice Council, amongst other trenchant criticisms of those amendments, said:
"… community based assessments in such high risk cases are far less reliable [than residential assessments] and are 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. A 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 suggests that simply because the Legal Services Commission refuses to finance residential assessments, the need for them in appropriate cases will not go away. The financial burden will of necessity shift back to local authorities ... In the Council's view the proposed timescale is inadequate as it will not allow local authorities and other agencies sufficient time to address the issue of how residential assessments are to be funded when they are ordered by the court. This risks a funding gap which could seriously prejudice the interests of the children and parents involved. The Council considers that in the current proposal the Commission is exposing itself to the risk of judicial review and challenges under the Human Rights Act. In Care and adoption proceedings the issues at stake for parents and children are of the greatest possible significance. As has recently been observed, to deprive a parent of her child is indeed 'a life sentence' …."
[25]Those comments were prescient. The court is in a difficult position in cases like this, unable to spread the financial load of necessary residential assessments, yet faced with local authorities which are already struggling to make ends meet. Although consideration has to be given to council’s budgets, it is not easy for a Court to appear to have to compare the relative importance of a particular residential assessment(a) with other residential assessments which have been or might be applied for in other cases involving the same local authority and/or(b) with other council duties and aspirations, perhaps help for an elderly person or the upkeep of a park. (I do not say that these will literally be direct competing choices, but it is not far off the mark where councils are in the red).[26]I am told by Counsel on behalf of this local authority that it regards this issue as being of wide-reaching public importance, as it is aware of other similar cases in the pipeline being dealt with by other local authorities which are going to cause the parties and the court serious difficulties. This local authority itself has two other pending cases where the same question is shortly going to arise and it expresses considerable concern about the financial implications, given the budgetary problems summarised above. The only reason for its decision not to argue actively against being ordered to pay all the costs here is that pragmatically it has little alternative, given the professional view of its own staff and of the Children’s Guardian that a residential assessment is the only way forward in E’s interests.[27]This case demonstrates an urgent need for further consideration of the funding of necessary residential assessments. Some arrangements need to be put in place to avoid the need for routine hearings like this on a case-by-case basis, hearings which are costly and which divert judicial resources. It is unsatisfactory if not invidious that courts charged with taking serious and sensitive decisions about children, where an under-informed decision could on occasion spell disaster, should have to choose between(a) overburdening an already over-stretched local authority or(b) denying a residential assessment to a parent for whom it represents the only hope of avoiding the loss of his or her child to adoption.[28]I add that those representing the mother had applied for a Declaration that the government’s funding amendments outlined above are not Human Rights Act compliant and I have already given directions in respect of that application. However, now that this Judgment has effectively removed the mother’s locus to mount such a case, I understand that her proposed application will not be pursued.