B (Minors)

Section 38(6) of the Children Act 1989 permits an assessment of a child in the context of the child’s relationship with the parents, including a properly conducted family assessment. It does not permit a court to order therapy or treatment for parents, whether or not the programme includes assessment or may benefit the child. The substance of the proposal is decisive. A programme directed principally to changing the parents’ circumstances, rather than assessing the child and existing family circumstances, is outside the statutory power. Welfare, delay, parental capacity and cost remain relevant to the exercise of discretion, but they cannot enlarge the court’s jurisdiction. A prolonged use of interim care orders principally to secure parental therapy may also constitute an abuse of statutory power.

Southampton City Council appealed from an order made by Her Honour Judge Davies in the Portsmouth County Court in care proceedings concerning a one-year-old child. The judge declined to make a final care order and directed the local authority to fund a proposed therapeutic programme for the parents under an interim care order, with possible rehabilitation of the child to them.

The local authority argued that the programme was substantially therapy rather than an assessment of the child within section 38(6) of the Children Act 1989. The central issue was whether the proposed arrangement fell within the court’s statutory power and, if so, whether the judge had properly exercised her discretion.

Appeal allowed. The order of the county court judge was set aside and a care order was made. There was no order as to costs, and leave to appeal to the House of Lords was refused.

1. Lord Justice Thorpe delivered the first judgment. Lord Justice Hobhouse agreed and adopted the concerns and reasoning expressed by him. The court applied the guidance in Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, which permitted a residential assessment of parents and child as a family unit where that was genuinely an assessment of the child. The interaction between child and parents could therefore be examined, but the court could not compel the parents to participate.
2. Section 38(6) drew a substantive boundary between assessment and treatment. A programme whose substance was therapy for the parents was outside the jurisdiction, even if assessments occurred during the programme or its success could later be evaluated. The power also did not extend to treatment or assessment directed at the parents alone. Psychiatric therapy intended to change the parents’ circumstances was not converted into an assessment merely because it might improve the child’s welfare.
3. The proposed programme devised by Dr Baker was, in substance, a lengthy therapeutic programme for the parents. The existing expert assessments were largely complete, and the proposal was directed to improving parental capacity rather than assessing the child or the existing family circumstances. The order requiring the local authority to fund it therefore exceeded the power conferred by section 38(6).
4. Lord Justice Hobhouse emphasised the distinction between jurisdiction and the criteria governing its exercise. Under section 1 of the Children Act 1989, welfare was paramount, delay had to be avoided, and the checklist included parental capacity and the range of powers available. Cost was relevant, particularly given limited local authority resources, but welfare did not enlarge the statutory powers. The judge had also failed sufficiently to analyse the recent evidence of change and the possible Cassell Hospital assessment.
5. Thorpe LJ indicated that using repeated interim care orders for up to a year principally to provide parental therapy might itself amount to an abuse of the interim-care regime, although that issue did not need to be finally determined. A rehearing was inappropriate given the child’s age and need for permanence. The court therefore exercised the discretion afresh and made a care order.

1. Court of Appeal (Civil Division). In [1998] EWCA Civ 1263, the appeal was allowed, the county court order was set aside, and a care order was made. No order was made as to costs and leave to appeal to the House of Lords was refused.
2. Portsmouth County Court. Her Honour Judge Davies made the order challenged on appeal at the final hearing in April 1998, explained in a reserved judgment handed down on 1 May 1998.