Kent County Council v. G and others

The House of Lords considered the scope of section 38(6) of the Children Act 1989. The court held that directions under that subsection must be for a medical or psychiatric examination or other assessment of the child, with the primary focus on the child (which may include the child in the context of family interaction), and not a programme the main purpose of which is therapeutic treatment of a parent. Section 38(6) is intended to enable the court to obtain information relevant to the decision whether to make a care order, to control the number and nature of assessments of the child and to avoid delay; it is not a power to require long-term residential treatment for parents or to compel a local authority to fund such treatment. The court also rejected the submission that article 8 ECHR created a positive right to state-funded parental therapy in these circumstances.

This was an appeal against the Court of Appeal's decision ordering a further residential programme at the Cassel Hospital involving prolonged therapeutic work with the mother and family under a direction said to be made pursuant to section 38(6) of the Children Act 1989.

Background and parties:

• The local authority (Kent County Council) instituted care proceedings concerning a young child, Ellie, whose family had a history of serious concerns including the earlier unexplained death of a sibling. The Cassel Hospital had provided an initial residential assessment and recommended a further extended residential programme of psychotherapy for the mother and family aimed at rehabilitating the mother so she might safely care for Ellie.
• Johnson J refused to direct further in‑patient treatment under section 38(6), holding that the proposed programme was therapy for the mother rather than an assessment of the child. The Court of Appeal reversed and gave the direction. The local authority appealed to the House of Lords.

Nature of the relief sought: A direction under section 38(6) for a further residential assessment/programme at the Cassel, effectively requiring the local authority to permit and (potentially) fund an extended therapeutic residential placement.

Issues framed:

• Whether section 38(6) authorises the court to direct residential programmes whose main purpose is therapeutic treatment of a parent (or a long-term combined treatment/assessment) rather than an assessment primarily of the child;
• Whether the subsection authorises directions for prolonged, continuing assessment over many months;
• Whether the court can, by such a direction, require a local authority or other public body to fund parental therapy; and
• Whether refusal to order such therapy engages a positive obligation under article 8 ECHR to provide treatment so as to preserve family life.

Court's reasoning and disposition:

• The court construed section 38(6) purposively but within the statutory scheme: the power is to give directions about examinations or assessments of the child (including the child in the family context) intended to inform the court's decision under the Act. That power is not a general power to order therapeutic programmes aimed principally at changing parents' capacities.
• Section 38(6) is closely connected to provisions designed to avoid delay (short limits on interim orders, the timetable obligations in section 32 and the Act's emphasis on prompt resolution). It therefore contemplates relatively short-term assessments focused on the child's current state and foreseeable immediate needs, although such assessments can involve observing the child with parents.
• A programme whose main focus is treatment of a parent, even if it yields information useful to the court, falls outside section 38(6). The statute does not give the court power to require a local authority or NHS trust to fund long-term parental treatment; funding issues must be resolved by the relevant public bodies or by separate public law challenge if appropriate.
• The court rejected the submission that article 8 imposed a positive duty to provide publicly-funded therapy so as to enable parents to become better carers; there is no article 8 right to be made a better parent at public expense.

Result: The appeal was allowed; the House of Lords restored Johnson J's approach and held the Court of Appeal had gone beyond the proper scope of section 38(6).

Appeal allowed. The House of Lords held that section 38(6) Children Act 1989 authorises directions only for medical or psychiatric examinations or other assessments of the child (which may include assessment of the child in the family context) with the primary focus on the child and over a relatively short period. A programme whose main purpose is therapeutic treatment of a parent, or a prolonged residential programme aimed at bringing about long-term parental change, falls outside the subsection; the court does not have a free-standing power under section 38(6) to require a local authority or other public body to fund such parental treatment. Article 8 does not create a right to such state-funded parental therapy in this context.

Appeal from the Court of Appeal (reversing Johnson J). Decision of the Court of Appeal: [2004] 1 FLR 876. The initial High Court/Family Division decision by Johnson J was given on 24 October 2003. The appeal was heard in the House of Lords and decided [2005] UKHL 68.