D (A Child)

Section 38(6) of the Children Act 1989 gives the court a broad power to obtain information needed for the final care decision. The power is investigative, however, and does not extend to ordering a programme whose primary purpose is treatment or therapy for a parent.

A residential assessment may include ancillary help, treatment or therapy. It may also assess a parent’s capacity to accept treatment and change. The decisive question is the programme’s substance and primary purpose. Where treatment is the dominant purpose, the programme falls outside section 38(6), even if assessment occurs during or after it.

The local authority obtained interim care orders concerning a five-month-old child whose mother had serious drug dependency and psychological difficulties. The county court directed the authority to undertake a six-month residential assessment of the mother and child at Phoenix House.

The authority appealed, arguing that the proposed programme was principally detoxification, rehabilitation and psychotherapy for the mother, rather than an assessment of the child. The county court had treated it as an assessment within section 38(6) of the Children Act 1989. The central issue was whether the court had jurisdiction to impose the proposed residential programme.

1. Appeal allowed. Paragraphs 2 and 3 of the county court’s order were deleted. The case was remitted to Lincoln County Court for further directions.
2. Section 38(6) of the Children Act 1989 must receive a broad and purposive construction. Its purpose is to enable the court to obtain information needed to decide whether a full care order should be made and, if so, on what terms. The jurisdiction is investigative and relates to the medical or psychiatric examination or other assessment of the child.
3. The distinction drawn in Re B (Psychiatric Therapy for Parents) [1999] 1 FLR 701 was affirmed and applied. A programme may include ancillary therapy, but a programme substantially directed to treatment or therapy for the parent is outside section 38(6). The court must identify the programme’s primary purpose and substance, rather than rely on the label attached to it.
4. Thorpe LJ explained that assessment need not be confined to existing circumstances. It may evaluate a parent’s capacity to accept help or treatment and may include limited therapeutic work intended to initiate change. Such treatment remains ancillary. Once the primary purpose changes from assessment to treatment, a subsequent treatment programme falls outside the jurisdiction.
5. The boundary identified in Re M (Residential Assessment Directions) [1998] 2 FLR 371 was endorsed, although the court preferred to begin with the jurisdictional question before considering discretionary matters such as the child’s best interests and the burden imposed on the local authority.
6. On the facts, the proposed programme was principally a treatment plan for the mother, involving treatment of psychological difficulties and drug addiction. Supervised assessment of her care of the child was ancillary. The county court therefore had no jurisdiction to order it.

• Court of Appeal (Civil Division): [1999] EWCA Civ 1390. Appeal allowed; paragraphs 2 and 3 of the county court order deleted; case remitted for further directions.
• Lincoln County Court: The judge directed a six-month residential assessment of the mother and child under section 38(6) of the Children Act 1989.