Neutral Citation Number:  EWCA Civ 992
Case No: B4/2018/0523
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ MCKINNELL
The Royal Courts of Justice
Strand, London, WC2A 2LL
Monday, 26 March 2018
LORD JUSTICE MOYLAN
LORD JUSTICE PETER JACKSON
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Re Y (A Child): s.38(6) Assessment
Ms S… G… (instructed by Local Authority Solicitor) appeared for the Applicant
Ms S… A… (instructed by Eskinazi & Co Solicitors) appeared for the Respondent
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LORD JUSTICE PETER JACKSON:
1. This appeal by a local authority concerns the powers of the court to make an order for assessment of a child under section 38(6) of the Children Act 1989. It is an appeal from an order made by HHJ McKinnell on 20 February 2018 when, amongst other things, she directed the local authority to finance the placement of a child, who I will call J (now aged seven months) together with her mother and father in the residential unit run by the National Specialist Family Service and known as Phoenix Futures.
2. J was born prematurely in July 2017, and in September she was discharged home. Proceedings were brought by the local authority because both parents have significant problems with their mental health and particularly with drug abuse. However, at a hearing on 7 February, HHJ McKinnell refused the local authority’s application for an interim care order, instead making an interim supervision order. There is no appeal from that decision, and J therefore remains at home with her parents.
3. A short while before that decision was made a report was obtained from a consultant forensic psychiatrist, Dr McLintock. He diagnosed that she has an emotionally unstable personality disorder and an addiction to hard drugs as well as being depressed. He advised that unless she addressed her various difficulties, it is highly unlikely there would be any change in her ability to care for a child in the foreseeable future. He was then asked about treatment and therapy and he said, amongst other things, that her drug addiction needed to be addressed by more intensive treatment and that there were two main options. The better option, in his view, was for her to obtain a place in a residential drug treatment unit extending for at least three months but preferably six months, but if that was not available then she would need to engage in a more intensive day programme of treatment offered by the local drug services.
4. It was on the basis of that advice that the mother issued an application under part 25 of the Family Procedure Rules on 13 February. The application was:
“For the mother, father and baby to be placed in a detox residential unit. This will assist the mother in achieving abstinence from drugs whilst J remains in her care.”
The application focused on Phoenix Futures, which had been in communication with the mother’s solicitors to explain their service. It is, they say, traditionally a 6-month placement but they offer a tailored 12-week placement as a minimum to fit alongside court timescales. In its helpful brochure the service describes itself in this way:
“The service offers a safe and monitored environment where parents can address their substance misuse issues whilst remaining as primary carer for their child/children. The service caters for people from all over the UK and provides an abstinence based (drug/alcohol free) residential rehabilitation and detoxification programme.”
It then goes on to describe three elements: a therapeutic element, a parenting element and a child development element. Relevantly, the parenting element is the Triple P, Positive Parenting Programme, where over the course of a residential placement there would be some eight or nine sessions of one-to-one consultations “to enhance parents’ self-sufficiency in managing their children’s behaviour.”
5. A draft letter of instruction was, as necessary, provided to the court. That began in this way: “You are instructed to assist the parents in undertaking a residential drug rehabilitation.” The instructions set out seven questions which were alike in the case of the mother and the father:
“(1) Please provide a comprehensive report of mother’s capacity and motivation to engage in the rehabilitation throughout the programme.
(2) Please provide a comparative analysis of mother’s actual progress made within the programme since entering the unit.
(3) What is the likelihood that the mother will maintain abstinence after leaving the unit, and what support, if any, will assist the mother with this in the community?
(4) Is the mother able to safely care for J in the light of her history of drug use and current prognosis?
(5) What is the risk of relapse? Please include any potential factors that may contribute towards a relapse when mother leaves the unit. How can this be prevented?
(6) Is there any therapy or additional support which the mother would benefit from to ensure abstinence?
(7) Is any future illicit drug use by the father likely to trigger the mother to relapse?”
It will be seen that only question 4 really refers directly to the position of J and her mother.
6. Dr McLintock also prepared a report in relation to the father but that was received after the judge’s decision on the residential assessment. The father’s intensity of drug use is clearly greater than the mother and was described by Dr McLintock as something that would need more than a 12-week residential treatment programme. He would need at least six months residential treatment in the doctor’s opinion.
7. The judge heard submissions from the parties. The mother and father of course supported the application, the mother being represented by Ms Shiva Ancliffe, who has appeared before us today. The local authority opposed the application and counsel then acting for them drew the judge’s attention to the possibility that the application was not an application for assessment of the child under Children Act 1989 Section 38(6). The local authority so submitted, and also said that it was not known how it was proposed that the placement should be funded. It favoured a community assessment together with certain other forms of information-gathering and monitoring. The Children’s Guardian gave a fair wind to the application in principle but did not have any information to offer about funding. At all events, the issue of whether this was a permissible assessment was one to which the judge was alerted.
8. The judge’s decision is expressed clearly and concisely. She begins in this way:
“This is an application by the mother to enter into a residential assessment unit called Phoenix Futures in order to plug what is said to be a gap in the evidence in relation to the parents’ ability to parent their child, J. I have heard today from the mother’s counsel who says that the assessment which is one recommended by the psychiatrist Dr McLintock, is necessary and gives the parents the best change of showing that they will be able to look after J.”
Then, at paragraph 2:
“The parties, including J and the parents, are entitled to a fair hearing. They are entitled to put evidence before the court that addresses matters which the court needs to determine, including the parents’ ability to parent this child. The local authority says that the residential unit is more geared towards providing treatment for the parents and it is certainly right, having looked at the brochure, that treatment is very much part of the service provided by Phoenix Futures. However, it is not the only part of the service and I also note, having been directed to the parenting element of the Phoenix Futures brochure, that the Triple P (Positive Parenting Programme) is a programme that is run within the Phoenix Futures service over nine weeks. So, in my judgment, it is not right to say that Phoenix Futures is just a facility that treats the parents. It is also a facility that provides support to the parents in their parenting and one important matter that the court is going to have to consider is whether or not the parents are able, particularly the mother, to safely parent young J.”
The judge then goes on to consider the relative merits of the residential and non- residential assessments that were being proposed and continues:
“It is clear to me from reading Dr McLintock’s report and his recommendations that the best chance that is given to these parents to show whether or not they are able to safely parent J within J’s timescales is for all three of them, including the child, to enter into the residential drug treatment unit. I recognise that it comes at a considerable cost but cost is not the determinative factor. The determinative factor is whether or not this is necessary in order for the court to conclude these proceedings fairly and to have before it all the information which is needed to make an important decision in relation to J’s future. My firm judgment is that it is necessary for the parents and for J to enter into the facility provided by Phoenix Futures, which will provide information to the court as to the parents’ ability to abstain from illegal substances, their ability to cope with the pressures of looking after a young child, while also undergoing the withdrawal from drugs and illegal substances, and also it is necessary, in my judgment, to provide information as to J’s attachment to her parents and any risks that the parents may present to her and the way in which those risks may be managed.”
9. As to the last point, the evidence that was before the judge demonstrated that J’s attachment to her parents, and her mother in particular, appeared to be good and that certain aspects of the home care were at least satisfactory. Before this court the parties acknowledge that the real problem in this case was drugs. Moreover, as part of the order that the judge made on 20 February, she also directed that there should be a report from an independent social worker to conduct the parenting assessment of the parents, that being something that Phoenix Futures had explained they could not undertake. There were also directions for hair strand testing, evidence from the local authority and, of course, from the Guardian.
10. I turn now to the court’s statutory powers, which appear at Sections 38(6), 38(7A) and (7B) of the Children Act 1989:
“38 Interim orders.
(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.
(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.
(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—
(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,
(b) the issues with which the examination or other assessment would assist the court,
(c) the questions which the examination or other assessment would enable the court to answer,
(d) the evidence otherwise available,
(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,
(f) the cost of the examination or other assessment, and
(g) any matters prescribed by Family Procedure Rules.”
11. Section 38(6) was twice considered by the House of Lords. Since then, subsections (7A) and (7B) have been added by amendment, but the two decisions remain determinative of the interpretation of sub-section (6).
12. The first decision is Re C (Interim Care Order: Residential Assessment)  1 FLR 1. In that case the issue concerned the breadth of section 38(6), and in particular whether it covered only an assessment of the child or, on a wider interpretation, an assessment of the child with the parent. The House of Lords favoured the latter interpretation: see Lord Browne-Wilkinson at [6-7]. At the end of paragraph 7, he stated:
“But to come within section 38(6) the proposed assessment must, in my opinion be an assessment of the child. The main focus must be on the child.”
He then considered the situation in that case and continued:
“What was to be assessed was the mother’s capacity for beneficial response to the psychotherapeutic treatment that she was to receive. Such an assessment, no matter how valuable the information might be for the purposes of the eventual final care order decision could not, in my opinion, be brought within section 38(6).”
13. The second decision is Re G (Interim Care Order: Residential Assessment)  1 FLR 601. There Lord Scott said at :
“It seems to me clear that the main purpose of the proposed programme was therapy for the mother in order to give her the opportunity of change so as to become a safe and acceptable carer… This purpose in my opinion does not come within section 38(6), notwithstanding that the results of the programme would be valuable and influential in enabling the court to decide whether a care order … should be made and that if the purpose were to be achieved, it would very greatly benefit the [child].”
14. Baroness Hale summarised matters at [64-71]. At paragraph 64 she said this:
“The purpose of these provisions is, therefore, not only to enable the court to obtain the information it needs but also to enable the court to control the information gathering activities of others. But the emphasis is always on obtaining the information. This is clear from the use of the words “examination” and “other assessment.” If the framers of the 1989 Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority.”
At paragraph 66:
“I appreciate, of course, that it is not always possible to draw a hard and fast line between information-gathering and service-providing. Some information can only be gathered through the provision of services. It may be necessary to observe the parents looking after the child at close quarters for a short period in order to assess the quality of the child’s attachment to the parents, the degree to which the parents have bonded with the child, the current parenting skills of the parents and their capacity to learn and develop…”
At paragraph 69:
“In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the 1989 Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves.”
And finally, at paragraph 71:
“Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring.”
15. The approach taken in these two cases remains authoritative, with only the substitution of the word “necessary” for the word “important” in the last citation.
16. In this case, Ms Sian Gough, for the local authority, submits that the judge in the first paragraph of her judgment incorrectly characterised this unit as a residential assessment unit and that she had also taken Dr McLintock to be recommending something as necessary when that was not the true effect of his advice. She contends that the judge did not correctly consider or apply the distinction between treatment and assessment and that she mischaracterised Phoenix Futures at paragraph 2. She overstated the service’s ability to carry out a parenting assessment, something that had been explicitly disavowed by them, and she left out of account the contribution that would be made by the independent social worker.
17. Ms Ancliffe, for the mother but speaking in this respect on behalf of both parents, emphasised the overlap that can exist between treatment and assessment in this case as seen in the list of questions that would be asked. She describes the key feature of the proposed assessment to be its intensity. The parents could be observed constantly and under pressure in a way that could not be achieved in the community. This would crucially inform the court’s ability to understand the parents’ capacity to abstain from drugs in the future.
18. In my view, a judge deciding an application under s.38(6) must address two questions:
(1) Is this a proposal for an assessment that falls within the terms of section 38(6)?
(2) If so, is the assessment necessary to assist the court to resolve the proceedings justly, as required by ss. 7A, having regard to the matters in ss. 7B?
Both questions must be approached in a manner that upholds the right to a fair trial under Article 6 and the right to respect for family life under Article 8. Only if both are answered affirmatively can the court make the direction requested.
19. Addressing these questions in the present case I have come to the conclusion that with regard to the first question, the judge mischaracterised the service that Phoenix Futures offers. They are a highly specialist drug treatment unit providing a service to help the mother and other parents become drug-free. They are not a residential assessment unit, nor are they a unit designed to assess the mother and child together. The judge concluded that it was necessary for the family to go to Phoenix Futures to provide information to the court “as to the parents’ ability to abstain from illegal substances” amongst other things. In reality, such an assessment might provide information to the court as to the parents’ ability to abstain from illegal substances after they had received treatment provided at the local authority’s expense. This, it seems to me, falls foul of the principle stated by Lord Browne-Wilkinson in Re C and Baroness Hale in Re G, which is that the focus of the assessment must be on the child. Here, had the judge correctly directed herself, she would necessarily have arrived at the conclusion that a placement at Phoenix Futures, while undoubtedly beneficial to the parents and to J, was not a service that she was empowered to direct the local authority to commission on behalf of these parents.
20. That conclusion would lead to this appeal being allowed but I will also briefly touch upon the second question, namely was such an assessment necessary? In this case the court had a wide range of sources of information already, namely from local authority social workers, from the Westminster Drugs Project, from hair strand and urine tests, from an independent social worker and from the Children’s Guardian. More particularly, the information from the Westminster Drugs Project would go some way to meet the second possibility contemplated by Dr McLintock in showing what can be offered to the parents in the community. Taking account of those matters, it is, in my view, unclear whether if this had been a residential assessment that passed through the gateway of section 38(6), it would have been found to be necessary. I say that having regard to the provisions of sub-section 7B and, in particular: (c) the questions which the examination or other assessment would enable the court to answer, (d) the evidence otherwise available, and (f) the cost of the examination or other assessment.
21. However, having drawn attention to those matters, it is not necessary to reach any firm conclusion about whether the judge was right to identify any gap in the evidence that would be available to the court at a final hearing. But they are matters that needed to be considered before an order of this kind was made.
22. I would therefore allow this appeal and set aside those parts of the judge’s order that relate to assessment by Phoenix Futures. In doing so, I would stress that this court holds no view about the ultimate outcome of the proceedings concerning J, which will now return to the Family Court.
LORD JUSTICE MOYLAN:
23. I agree.