Kent County Council (Appellants) v. G and others (FC) (Respondents)

Under section 38(6) of the Children Act 1989, a court may direct an examination or assessment only where it is truly an assessment of the child. It may include the child’s relationship with parents, parental behaviour towards the child, and current parental capacity. Its purpose is to obtain information needed for the court’s decision without delay.

The power does not authorise a lengthy programme whose real purpose is to treat a parent or bring about long-term improvement in parenting. Services or therapy may be ancillary to a genuine child assessment, but cannot be its end. The statutory allocation of parental responsibility to the local authority cannot be displaced by using section 38(6) to require family services.

Following the death of the mother’s earlier child from non-accidental injuries, Kent County Council began care proceedings shortly after the birth of the respondents’ daughter, referred to as Ellie. The family entered the Cassel Hospital for an initial residential assessment under an interim care order.

Later reports recommended several further months of in-patient psychotherapy and rehabilitation for the mother, combined with continuing assessment. Johnson J held that the proposed programme was therapy rather than an assessment within section 38(6) of the Children Act 1989. The Court of Appeal reversed that decision in [2004] 1 FLR 876.

The House considered whether section 38(6) empowered the court to direct the local authority to fund the further Cassel programme.

1. The appeal was allowed unanimously. Baroness Hale held that the Court of Appeal’s formulation was too broad. The question was not simply whether a proposed programme could be described as an assessment producing information useful to the court.
2. Baroness Hale, applying In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, held that section 38(6) has a broad but defined scope. An assessment of the child may include the child in the family setting, the child’s relationship with parents, parental behaviour towards the child, and present parental capacity. It must nevertheless be directed to the court’s statutory decisions concerning the child and completed with the minimum of delay.
3. Baroness Hale explained that the power is confined to information-gathering. Any service supplied to a child or family must be ancillary to a genuine assessment. It cannot be used to bring about change in a parent, to provide therapeutic treatment, or to secure a lengthy rehabilitation programme. Lord Scott agreed that the decisive distinction was between an assessment focused on the child and a programme focused on treating the mother and improving her parenting skills. Lord Clyde and Lord Mance likewise stressed the present and short-term character of the permitted assessment.
4. The proposed further Cassel placement was, in substance, a months-long therapeutic programme for the mother. Although it could yield valuable evidence and was ultimately beneficial, it was not an assessment of Ellie within section 38(6). Johnson J had therefore been correct to refuse the direction.
5. Baroness Hale and Lord Clyde also relied on the statutory division of responsibility: after an interim care order, the local authority has parental responsibility and manages the child’s care. Section 38(6) does not permit the court to take over that role by directing the provision of services. Lord Scott rejected the Article 8 argument; it does not confer an entitlement to publicly funded treatment to improve parenting. Baroness Hale left unresolved the wider question whether a court could direct funding for a genuine assessment.
6. There was no order as to costs.

• House of Lords: Allowed Kent County Council’s appeal and restored Johnson J’s conclusion that the proposed further Cassel programme fell outside section 38(6): [2005] UKHL 68.
• Court of Appeal: Allowed the parents’ appeal from Johnson J and directed the further programme, holding that the essential question was whether it could broadly be classified as an assessment enabling the court to obtain necessary information: [2004] 1 FLR 876.
• High Court (Johnson J): Held on 24 October 2003 that the further in-patient programme was therapy rather than an assessment and refused the section 38(6) direction.