A (A Child), Re

Once an interim or final care order is made, responsibility for the child’s care, residence and general welfare ordinarily rests with the local authority. Section 38(6) of the Children Act 1989 permits the court to direct an assessment of the child, including in a family setting and, where necessary, to specify where and with whom it is to occur. The assessment must genuinely be of the child; therapeutic or family services must remain ancillary. An otherwise unregulated placement may be directed if the court is satisfied that the assessment is appropriate and safe and provides suitable supervision and control.

The local authority appealed from directions made by the Cardiff Family Proceedings Court during care proceedings concerning A. An interim care order was in force. The Justices directed that A should reside with her paternal great-grandmother and aunt for assessment under section 38(6) of the Children Act 1989, while the local authority retained parental responsibility.

The proposed carers were not approved foster carers and the placement was not regulated under the applicable statutory schemes. The local authority argued that the Justices had exceeded their jurisdiction, refused an adjournment improperly and gave inadequate reasons. The central issue was whether the section 38(6) direction was lawful.

1. Appeal dismissed. The appeal had become academic on the facts, but the statutory issue was determined because of its wider practical importance. No order for costs was made.
2. Section 38(6) permits the court to override the local authority’s interim management of the child to obtain information needed for the court’s final decision. The power is not confined to institutional residential assessments and may extend to an assessment in any setting, subject to the assessment being of the child.
3. The distinction between assessment and impermissible therapy depends on the programme’s primary purpose. Assessment of the child in a family context, including the child’s relationship with carers and the carers’ ability to care for or manage contact, is permissible. Therapeutic or treatment elements must be ancillary.
4. The court may specify the place and persons with whom the assessment is to take place. Section 38(6) does not restrict the direction to a regulated residential family centre. A non-regulated family placement may be directed where required for the assessment, provided the court considers its appropriateness and safety and ensures suitable monitoring or supervision.
5. The order did not circumvent statutory regulations or leave A in a legal vacuum. It operated within a defined framework consisting of the interim care order, the section 38(6) direction and other appropriate directions, under the continuing control of the court.
6. A Family Proceedings Court has jurisdiction to determine a section 38(6) application. Transfer depends on the overall complexity of the care case, not merely on the fact that the application is unusual or disputed.
7. The Justices were entitled to refuse a short adjournment because time was pressing and the local authority suffered no material prejudice. Their concise reasons were adequate for an interim hearing.

• High Court (Family Division): appeal from the Cardiff Family Proceedings Court dismissed. The appeal was academic by the hearing because the interim care order had been replaced by interim residence and supervision orders, but the statutory issue was determined for guidance.