Re C (Interim Care Order: Residential Assessment)

The House of Lords held that sections 38(6) and 38(7) of the Children Act 1989 must be given a purposive construction so as to permit the court, in appropriate cases, to direct assessments which involve the participation of the child and his parents, including a residential assessment at a specified place. The statutory power is not confined by ejusdem generis to medical or psychiatric examination of the child alone. Section 38(7) (power to prohibit an examination or assessment) supports a broad reading so as to enable the court to obtain material necessary for its decision on a final care order under section 31. In exercising the power the court must take into account relevant factors, including the cost and the local authority's limited resources, but resource considerations do not preclude the court from ordering an assessment.

Background and facts:

• T was an infant who suffered serious non-accidental injuries in October 1995. His young parents could not give a satisfactory explanation. An emergency protection order was obtained on 1 November 1995 and an interim care order was made on 9 November 1995.
• Social services and a clinical psychologist recommended a residential assessment of T together with his parents to test parental ability over longer periods, including nights. The guardian ad litem supported this as necessary before any final decision on placement.
• The local authority refused to agree to or to pay for the proposed residential assessment, citing the unexplained injuries, parental instability and the risk to T; the authority indicated it would seek a final care order for a permanent alternative placement.

Procedural history and nature of application:

• The parents applied under section 38(6) of the Children Act 1989 for a direction that T and his parents undergo a residential assessment at a specified place. Hogg J granted the direction. The local authority appealed to the Court of Appeal which, following Re M (Court of Appeal) [1996] 2 FLR 464, held that the court had no jurisdiction to order such a residential assessment and allowed the appeal.
• The parents appealed to the House of Lords.

Issues framed:

• Whether section 38(6) and its companion subsection 38(7) permit the court to direct an assessment which involves the child and his parents together, including a residential assessment at a specified place.
• Whether such an order would inappropriately usurp the local authority's functions (in particular its power under section 23 to determine the child’s placement) or improperly require a local authority to expend scarce resources.

Court’s reasoning and decision:

• The House of Lords rejected a narrow ejusdem generis construction confining section 38(6) to the same kind of examinations as medical or psychiatric examinations of the child alone. The court held that the subsection must be read purposively to enable the court to obtain material necessary for its adjudicative function about a final care order under section 31.
• Section 38(7)’s power to prohibit proposed examinations or assessments supported a broad construction because negative control would be ineffective if limited to examinations of the child alone.
• The fact that the child is in the interim care of the local authority does not prevent the court, in appropriate cases, from directing assessments which involve the child and his parents where that material is necessary for the court’s decision. An order specifying where and with whom the assessment is to take place is for the purpose of assessment and is not a placement under section 23.
• Cost and the allocation of local authority resources are relevant considerations in the court’s exercise of discretion but do not determine the scope of the statutory power; the local authority must put forward evidence of resource constraints if it seeks to rely on them.

Relief sought: An order under section 38(6) directing a residential assessment of the child and his parents at a specified place.

Appeal allowed. The House of Lords held that sections 38(6) and 38(7) of the Children Act 1989 permit the court, if satisfied it is necessary to obtain material for determination of the final care order, to direct assessments involving the participation of the child and others (including parents) and to specify the place for a residential assessment; the court must, in exercising that power, take into account relevant factors including cost and the local authority's resources but resource considerations do not preclude the ordering of an assessment.

Hogg J (first instance) made an order under s 38(6) directing a residential assessment. The local authority appealed to the Court of Appeal (Butler-Sloss, Waite and Roch LJJ) which, following Re M (Court of Appeal) [1996] 2 FLR 464, held there was no jurisdiction and allowed the appeal. The parents appealed to the House of Lords which allowed the appeal and restored Hogg J's order. Relevant cited authorities in the path included Re M [1996] 2 FLR 464 and Re L [1996] 2 FLR 742; earlier authority A v Liverpool City Council [1982] AC 363 was considered on wardship context.