Re K & Re R

The court’s inherent jurisdiction cannot be used by a local authority to authorise a placement where an available statutory route governs the issue. Under Children Act 1989, s 38(6), the court may direct an assessment of a child, including a residential assessment in an unregistered or otherwise unlawful setting, provided the assessment is necessary, appropriate and safe. The provision is construed broadly and may include ancillary services, but the primary purpose must remain assessment of the child. Such a direction is distinct from authorising the commission of a criminal offence or making a placement under the local authority’s general care powers. Applications should be made in writing and supported by evidence addressing the statutory criteria and the necessity, purpose, duration and suitability of the proposed assessment.

These were two unrelated applications concerning infants who were living with their mothers in the same unregistered residential family centre. Each child was subject to an interim care order. The local authority sought either authorisation under the court’s inherent jurisdiction for the placement to continue or directions for assessment under s 38(6) of the Children Act 1989.

The placement fell within the statutory definition of a residential family centre and required registration. The children’s guardian and Cafcass opposed use of the inherent jurisdiction and questioned whether the court could direct an assessment in a commercial, unregistered placement. The central issues were whether the statutory scheme prohibited the proposed assessment and whether the inherent jurisdiction remained available.

1. Disposition. The local authority’s applications to invoke the inherent jurisdiction were dismissed. Directions were made under s 38(6) of the Children Act 1989 for the residential assessment of each child to continue. The local authority met the costs.
2. Inherent jurisdiction. Although the High Court’s inherent jurisdiction is wide and may authorise an unregistered placement where imperative necessity exists, ss 100(3)–(5) of the Act, together with PD12D of the Family Procedure Rules 2010, prevented its use here. A statutory mechanism was available and was the appropriate route.
3. Section 38(6). The provision gives the court one of the limited powers to interfere with the local authority’s exercise of parental responsibility under an interim care order. It is broadly construed. It permits the court to direct an assessment in a specified setting, including an unregistered residential family centre, and registration status does not itself remove that jurisdiction.
4. The assessment must be an assessment of the child and must be necessary to provide information required for the court’s welfare decision. The primary purpose of the programme must be assessment; therapeutic, supportive or other services may be included only as ancillary elements. The court must also be satisfied that the proposed assessment is appropriate and safe for the child.
5. The fact that the placement may contravene registration requirements does not prevent a direction under s 38(6). The direction concerns assessment for the purpose of determining the child’s welfare and does not authorise the commission of any criminal offence. The local authority must first investigate registration status, staff qualifications, the purpose and length of the assessment, and provide sufficient information to the parties and court.
6. An application under s 38(6) should be made in writing and supported by a statement addressing the criteria in s 38(7), including necessity, welfare impact, the issues and questions to be addressed, available evidence, effect on the proceedings, cost and any relevant procedural requirements. In an emergency, these steps must be completed as soon as practicable.