In re C (A Minor) (Interim Care Order: Residential Assessment)

Sections 38(6) and 38(7) of the Children Act 1989 confer a broad power to direct or prohibit an assessment involving a child subject to an interim care order. The power includes a joint residential assessment of the child and the parents where it will provide material required for the final care decision.

The direction may specify where and with whom the assessment will occur. It does not constitute a placement under section 23. The court may override the local authority’s control of the child for this limited evidential purpose, but cannot compel a parent, or a child capable of informed refusal, to participate. Cost and limited resources are relevant to the exercise of discretion, but do not restrict the existence of jurisdiction.

T, an infant, suffered serious unexplained injuries regarded as non-accidental while in his young parents’ care. He was placed with foster parents under an interim care order. Social workers, a psychologist and the guardian ad litem recommended a residential assessment of T and his parents, but the local authority opposed it because rehabilitation was considered too risky.

Hogg J directed the assessment under section 38(6) of the Children Act 1989. The Court of Appeal allowed the local authority’s appeal because it was bound by Re M (Interim Care Order: Assessment) [1996] 2 FLR 464, which adopted a narrow construction of section 38(6). The parents appealed. The central issue was whether the subsection authorised a joint residential assessment at a specified place despite the local authority’s objection.

1. Disposition. Lord Browne-Wilkinson delivered the leading speech. Lord Griffiths, Lord Lloyd, Lord Nicholls of Birkenhead and Lord Hope of Craighead agreed with his reasons. The House unanimously allowed the appeal and restored Hogg J’s direction for the residential assessment.

2. Scope and purpose of the assessment power. Per Lord Browne-Wilkinson, sections 38(6) and 38(7) of the Children Act 1989 must be construed purposively and broadly. They confer jurisdiction to direct or prohibit any assessment which involves the child’s participation and is intended to provide material that the court considers necessary for its final care decision. Otherwise, a local authority could pre-empt the court’s judicial decision by controlling the evidence placed before it. The contrary holding in Re M (Interim Care Order: Assessment) [1996] 2 FLR 464 could no longer stand.

3. Joint assessment and consent. Per Lord Browne-Wilkinson, “other assessment” is not confined by the ejusdem generis principle to an examination resembling a medical or psychiatric examination. A young child cannot realistically be assessed apart from the child’s environment and relationship with those providing care. A joint assessment of the child and parents is therefore an assessment of the child within section 38(6). The court cannot compel a parent to participate and cannot compel a child who has sufficient understanding to override an informed refusal.

4. Local authority control and residence. Per Lord Browne-Wilkinson, the assessment power is a specified exception to the local authority’s ordinary control of a child under an interim care order. A direction identifying where and with whom a residential assessment will occur is not a placement under section 23. It therefore does not usurp the local authority’s statutory placement functions. Re L (Interim Care Order: Power of Court) [1996] 2 FLR 742 concerned conditions regulating residence, not the assessment jurisdiction.

5. Resources and discretion. Per Lord Browne-Wilkinson, the expense of an assessment and the limited resources of a local authority cannot narrow the jurisdiction conferred by section 38(6). They are, however, relevant when the court decides whether to exercise that jurisdiction. Hogg J had considered the substantial cost and the authority’s limited resources. The authority had not supplied fuller evidence about resource allocation and could not complain that the discretion was exercised on the evidence it chose to provide. The House expressed no final view on how detailed a resource inquiry would ordinarily be appropriate.

Appeal allowed. Hogg J’s order restored. No order as to costs in the Court of Appeal or the House of Lords, save for legal aid taxation.

• House of Lords: The House unanimously allowed the parents’ appeal and restored Hogg J’s residential-assessment direction: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489.
• Court of Appeal: Butler-Sloss LJ, with Waite and Roch LJJ agreeing, allowed the local authority’s appeal. The court considered itself bound by Re M (Interim Care Order: Assessment) [1996] 2 FLR 464 to hold that section 38(6) conferred no jurisdiction to order the residential assessment.
• High Court: Hogg J held that section 38(6) conferred jurisdiction and, after considering the child’s needs, the evidential value of the assessment, delay, cost and local-authority resources, directed that the assessment take place.