B (Minors) [1998] EWCA Civ 1263 (22 July 1998)

LORD JUSTICE THORPE: This appeal concerns a boy who is just one year of age and who is christened J. His future was the subject of care proceedings in the Portsmouth County Court. The applicant local authority, Southampton City Council, appeals the order made by Her Honour Judge Davies at the final hearing in April 1998, an order which is explained in a reserved judgment which she handed down on 1 May 1998. The local authority applied for leave to appeal and a stay, but unfortunately towards the end of the 28 day period allowed. That application was submitted on paper on 2 July 1998 when I granted a stay and directed an inter partes hearing today.

The history necessarily starts with an account of the lives of the elder children born to these parents. The father is now 34 and the mother 25. Her first born is a girl who is now 7, her second born is now 6, and her third born child is now 5. Those three children were the subject of emergency protection orders obtained in June 1993. They developed into interim care orders, and the future of those three children was substantially settled by a judgment of Her Honour Judge Norrie sitting in the Brighton County Court. She made care orders in respect of the younger two children, but with a view to rehabilitation. The care order in respect of the eldest child was with a view to an adoptive placement.

The rehabilitation plan failed and the same judge subsequently made freeing orders in respect of the two younger children. By the time the parents moved from the jurisdiction of the Brighton County Court into the jurisdiction of the Portsmouth County Court, all three children had been placed for adoption.

About six months after that move, the mother gave birth to the child with whom we are concerned, J. In view of the history, the local authority applied for a care order approximately a fortnight after his birth. The proceedings were duly constituted with a guardian ad litem who sought advice from a Mrs Chimera, who is a psychotherapist working under the supervision of Dr Baker at a clinic and treatment centre which he operates in partnership with a Mrs Duncan in Woking. Dr Baker has held consultant posts as a child and family psychiatrist. He carries out specialist work in the field of child abuse. Mrs Duncan is a clinical psychologist and she too has done much work in the field of family relationships and child sexual abuse.

She said that once therapy was underway and there had been regular attendance, there should be a rehabilitation within a span of six to twelve weeks. She held out the possibility of a future of natural parenting for the little boy. Dr Hutchison's opinion, which was given on 19 February, was in relation to the mother's capacity to respond to psychoanalytic therapeutic treatment, for her deep seated problems. Her opinion of 19 February was that, while she had reservations about the mother's ability to work in therapy, she thought that there was still hope that she would be able to work in psychotherapy. Accordingly, she was prepared to offer her the benefit of the doubt and offer her individual psychotherapy for a period of 2 years. However, the current waiting list prevented commencement in anything under 9 months.

The next important stage in the development of professional opinion came on 1 April when the guardian ad litem filed a report in preparation for the fixture. She referred to the positive opinion of Mrs Chimera and to the more pessimistic opinions of Dr Hutchison and Dr Hook. Her final opinion in the penultimate paragraph of her report was:

It would appear that, although the guardian supported the local authority's application, Miss Griffiths, who represented the local authority below, said that she wished to cross-examine Mrs Chimera. Accordingly the guardian ad litem telephoned Dr Baker's Ashwood Centre and, fortuitously, found herself in conversation with Dr Baker. During the course of the conversation, Dr Baker apparently said that he was in a position to formulate a therapeutic programme which might result in the rehabilitation of J to his parents, presumably ultimately under a residence order.

Despite the clear conclusion expressed in her report of 1 April, the guardian was attracted by this belated suggestion. Over the course of the adjournment between the first and second days, Dr Baker managed to put into writing a detailed statement of the programme which he had in mind. He spelled out towards its conclusion his estimate of costs for a one-year therapeutic programme of £68,280 plus VAT, to which would have to be added, in his view as a matter of prudence, a contingency allowance of £18,080, making a total of £86,360 exclusive of VAT. In addition, it would be necessary for the local authority to rent, in the vicinity of the Ashwood Centre, a house which would have sufficient accommodation not only for the parents but also in due course for J, should he join them there, and for a support team who would be exercising 24 hours' supervision. He said in his concluding paragraph:

It may be that the arrival of Dr Baker's written programme caused the local authority to refer again to Dr Hutchison. On 26 April, still during the course of the continuing trial, she filed a supplementary report in which she said that she had read the papers annexed (the annexure showed sixteen statements or reports which had been filed in the proceedings between their inception and 1 April). She said:

"The reports contain many reference to character patterns that have not changed, and that emerged during my assessment of [the mother's] ability to use psychotherapy. Such changes in [the mother], or the couple, as are detailed in the reports were known to me when I undertook my assessment. I can see no reason to change my initial report."

The submissions advanced to the judge at the end of the oral evidence, during the course of which all four experts testified, were from the parents that there should be a move into Dr Baker's belated proposal. That was supported by the guardian ad litem. The local authority opposed those proposals, pressed for the care order but, as a fall back position, conceded that if there was a case for further assessment it should be conducted by the Cassell Hospital. They undertook to meet the relatively slight costs of the initial outpatient assessment, although they reserved their position with regard to a residential inpatient assessment which might follow if the conclusion of the outpatient assessment was that the family were suitable for further assessment.

The judge's reserved judgment refers to the Cassell possibility at the outset of the judgment when she records the submissions of the parties. She reverts to that possibility only in passing when, in relation to Dr Hutchison's evidence, she recorded Dr Hutchison's preference for the Cassell Hospital were there to be a further assessment. At the end of her judgment, she referred to the comparative cost of the Cassell Hospital when considering the submission that Dr Baker's proposal was at a price that was quite disproportionate giving due weight to the local authority's wider responsibility for children at large within their area.

So the inference from that paragraph was that the judge regarded herself as choosing only between the Dr Baker package and adoption. That may be because, in rejecting the opinion of Dr Hutchison, she regarded herself as rejecting Dr Hutchison's preference for the Cassell Hospital as the appropriate treatment referral. It is, in my judgment, a criticism of the judgment that insufficient regard was paid to that alternative and insufficient reason given for its rejection. I will return to those themes later in this judgment.

The judge also considered the difference of opinion between Dr Baker and Mrs Chimera on the one hand and Dr Hutchison and Dr Hook on the other. I should emphasise that there seems to have been no disagreement between these experts on any issue of fact. It seems to have been essentially a difference of opinion and prognosis. The judge expressed her preference for the opinion of Dr Baker and Mrs Chimera and reasoned that preference by saying that:

"I come to the conclusion that I prefer the views of Dr Baker in particular and of Mrs Chimera. What tips the balance so far as I am concerned is that Dr Baker was involved in the previous proceedings [in the Brighton county Court] and has knowledge of this family in greater depth going over a longer period of time. At the time of the previous proceedings his view relating to the parents' ability was negative. It is perhaps therefore the more persuasive that he now feels that there is a significant prospect of change for these parents."

It is to be noted that the work done by Mrs Chimera under the supervision of Dr Baker was essentially concluded in November 1997. Any evaluation of change was between the completion of the proceedings in the Brighton County Court and the forensic assessment filed in November 1997. Furthermore, at page 10 in the judgment, the judge specified those changes in her review of Mrs Chimera's evidence. They were four in number. It is conceded that the time frame within which those changes were being posited was the timeframe concluding November 1997. What the judge does not seem to have evaluated in relation to the parent's capacity to change was the important period between November 1997 and April 1998, as to which the only evidence was that of Dr Hook and Dr Hutchison which was all one way.

In reaching her conclusion the judge evaluated the local authority's argument that it was quite disproportionate to impose upon them a cost in relation to a single child, which was likely to approximate £100,000 in the year ahead. She balanced that against a number of considerations which, in my opinion, are of very doubtful relevance. She said that an advantage, as it were a cost benefit advantage, of taking Dr Baker's route might be that subsequent adoption proceedings were less likely to be contested. She said that regard had to be had to the probability of the parents having further children and the additional costs associated with further proceedings if the parents had not received the therapy that Dr Baker was prepared to offer.

The judge specifically considered the question as to whether she had jurisdiction to impose Dr Baker's programme on the local authority within the bounds of section 38(6). She concluded that she had that jurisdiction and that she should, in the exercise of her discretion, resort to the jurisdiction.

Mr Munby's attack on the judge's judgment is powerful. It has been succinctly summarised in his notice of appeal and subsequently expanded in his skeleton argument. In his notice of appeal he advances the contention that Dr Baker's programme was not an assessment in any interpretation of that word, but was rather more a therapeutic programme designed to improve the adult's capacity to parent. He also attacks the programme on the basis that it had a duration of 12 months, during the first three months of which the parents would be based in another county undergoing their therapy, and having only regular supervised contact to the child who would continue in residence with the foster parents within the applicant's jurisdiction. Thereafter, assuming the most optimistic outcome, there would be a period of anything up to eight months during which the child would effectively have been rehabilitated, but during which there would be continuing extension of interim care orders, contrary to their proper use under the statute.

In his submissions, Mr Munby has conceded that a programme is properly labelled "assessment" even if there is an ingredient of ancillary therapy. He also concedes that the programme may properly be labelled "assessment" within the bounds of section 38(6) if, as well as assessing the child, the professionals carry out an assessment of the parents. A line is to be drawn, he says, to exclude a programme that is substantially therapeutic even if it involves some element of assessment as it progresses. He says that certainly to be excluded is an assessment of a parent which may involve some ancillary assessment of the child. These boundaries need to be drawn in the light of the following words of S 38(6):

It was long thought that the true construction of that section precluded a judge from ordering a residential assessment which was not of the child alone but of the family. However, the decision of the House of Lords in Re C (A Minor) (Interim Care Order: Residential Assessment [1997] AC 489 showed us that a wider construction of the subsection is permissible. Particularly from the speech of Lord Browne-Wilkinson, we learned that there is jurisdiction under this subsection to direct a residential assessment of the parents and child as a whole family unit.

The essential task in each case is to apply the principles stated in the speech of Lord Browne-Wilkinson to the facts of the particular case. On which side of the boundary does the individual proposal lie? Is it, in reality, assessment which the court has jurisdiction to order, or is it, in reality, something else? Manifestly the most likely alternative is therapy which lies outside the bounds of the section.

I am in no doubt at all that Mr Munby is right when he characterises Dr Baker's proposal as essentially a programme of therapy for the parents with a view to improving their prospects of providing good enough parenting rather than a programme of assessment. He rightly stresses that there had been a number of assessments to guide the judge, and they were all complete and in evidence before her. They were, in the main, pessimistic. Essentially Dr Baker was offering a treatment programme that would address the parent's disabilities rather than a programme to assess anything in relation to the child, even taking the child in the wider context of "the child within the family".

Mr Munby's second submission in a sense is unnecessary therefore to address. He developed the argument that, essentially, the judge could not opt for Dr Baker's proposal without falling into abuse of the interim care order regime. It would have involved the court in making an extended series of interim care orders for little purpose other than to enable the parents to receive the extensive therapy that they as adults needed, without the necessary consideration at the end of each 28 day period as to whether the needs of the child were met by the extension of the order. As he says, the point which the use of interim care orders becomes the abuse of interim care orders is hard to define but easier to recognise. I would tend to think that Mr Munby was probably right in suggesting that had there been no challenge under section 38(6) there would have been grounds for challenge on the basis that, once the judge had determined, as she did under section 31 of the Act, that the threshold criteria had been met, it would have been an abuse of her statutory power thereafter to control the local authority's management of the child's life by a series of repeated interim orders covering a period as long as 12 months.

Mr Munby's third submission in relation to budget, is again unnecessary to address. He quite rightly stresses that £100,000 is an extremely heavy liability for a local authority, particularly one that has set a budget in this field of only approximate £50,000 per annum. The speech of Lord Browne-Wilkinson stresses the importance of giving proper weight to the due proportion of benefit to the instant child against the local authority's wider responsibilities for children generally within their area.

With all due respect to the judge, who of course had the opportunity to see and hear the experts, I think that she was wrong to prefer the opinion of Dr Baker and Mrs Chimera. The essential issue was the capacity of the parents to change in response to psychotherapy. That issue fell particularly within the field of the expertise of Dr Hook and Dr Hutchison. Her reason for the preference of the evidence of Dr Baker and Mrs Chimera does not in my judgment stand analysis. It is true that Dr Baker had had a forensic involvement throughout the proceedings in the Brighton County Court. But against that had to be weighed the fact that he had had precious little forensic involvement with this case and seemingly none between the date upon which Mrs Chimera completed her investigations and the fortuitous telephone call with the guardian ad litem on the first day of the hearing.

The optimistic assessment that he advanced of the success prospects exceeding 50 per cent has to be questioned. On what evidence was it based? The only evidence of change was the evidence of Mrs Chimera relating to an earlier period. There was certainly no optimistic evidence of change in the more recent period. Nor does the 10 to 15 per cent possibility of success advanced by Dr Hutchison seem to have been much considered. It seems to have been dismissed absolutely. The likelihood of some percentage between the two seems not to have been considered.

I have already referred to the absence of any reason for the rejection of an assessment at the Cassell Hospital, if any assessment was appropriate at that stage. The Cassell hospital is the resource of ultimate expertise and experience in this field, particularly for the residential psychotherapeutic assessment and treatment of parents and children as a whole family unit. Their expertise in assessing whether or not a family is treatable is unrivalled. If the judge thought that there was a real issue still alive in April 1998 as to whether this was a treatable family, then greater consideration should have been given to the possibility of a referral to the Cassell to advise her on that issue. One of the obvious advantages was that it would have been possible for the Cassell to have given a preliminary opinion on outpatient assessment within a timescale that would have enabled J to be placed, or certainly directed towards placement, within the first year of his life if the outcome of the outpatient referral had been negative.

There are two points I would like to emphasise in conclusion. The first is that, whatever may be the jurisdictional position in relation to section 38(6), it is important to emphasise that the successful operation of the Children Act 1989 depends crucially on interdisciplinarity and partnership. It seems to me that the circumstances in which a judge finds himself or herself in conflict with the responsible local authority should be restricted to the absolute minimum. It is an order of last resort to impose on a local authority an obligation to spend something in the order of £100,000 on a single child if the local authority are resolutely opposed. If there is a residential assessment option which is acceptable to the local authority, it should, I would hope, almost always result in a judicial preference for the acceptable expensive option rather than the unacceptable expensive option.

Finally this case illustrates the importance of careful preparation and careful attention to proper procedures as the litigation develops towards its final hearing. This very experienced judge was ambushed into an exceptionally difficult trial. Had it been made plain, as it should have been, at least at the pretrial review stage, that there was a serious issue to be determined as to the boundaries of section 38(6), as to final care order or rehabilitation, as to the parent's capacity to respond to treatment, and had it been discerned that there was a divergence of professional opinion, this might well have been seen as a case appropriate for referral to the liaison judge and transfer for trial by a judge of the Division. It is a recipe for unsatisfactory results if the available options are unperceived until the trial develops and if the available options are settled in haste under pressure of time without proper opportunity for them to be reflected upon, and without proper opportunity for the experts to get together well in advance to discuss their respective positions to see to what extent they truly do disagree.

However, both on the question of law and also on the question of discretion, I am clear that this order cannot stand and must be set aside. It is manifest that we must exercise discretion afresh. It is simply unthinkable to contemplate a re-hearing if the child's needs do not permit. The real choice is between a care order simpliciter or, arguably, a return to an interim care order with a direction under section 38(6) for an outpatient assessment by the Cassell Hospital. In my judgment, the first of those two options is the proper choice.

It is now three months on in the life of this young child. This court knows nothing as to whether the Cassell has a vacancy to take the referral. It is simply too unstructured a development. However, once the local authority leave this court with a care order, it is not only open to them, but also incumbent upon them, to consider how they will discharge the responsibilities that flow. Obviously I anticipate that they will discuss with the guardian ad litem how they should implement the responsibility and they will, no doubt, give careful consideration to the views expressed by those who advise the parents. If they should, in the exercise of their judgment, think it appropriate to seek an outpatient referral to the Cassell Hospital for an assessment, then that at least would be supported by the guardian ad litem and might be seen by the parents as some mitigation of what they will no doubt find a hard judgment to accept from this court. I would propose that the appeal be allowed and that the order made by the judge should be set aside and a care order made in favour of the applicant.

I would like to say something about the question of the jurisdiction of the judge and the powers of the court under section 38(6) of the Children Act 1989. It is important at the outset to distinguish between the powers of the court and the criteria which the court has to apply in deciding whether or not to make an order and, if so, what that order should be. There has been a tendency, certainly in some of the reasoning which we have examined during the course of this hearing, and some of the arguments to which we have listened, to elide the two. The criteria are by and large set out earlier in the Act. One can find them in section 1.

Under section 1(1) the welfare of the child shall be the court's paramount consideration. That is so, but it does not lead to the conclusion that everything that might tend towards the child's welfare is within the powers of the court. The relevance of that subsection in the present case is that it puts in context the question of cost. Cost is not a paramount consideration. If Parliament had thought otherwise it would have expressed section 1 differently. However, it remains the case, as said by Lord Browne-Wilkinson in Re C (A Minor) [1997] AC 489, at page 584:

By contrast the orders that the court has the power to make are governed in the present context by Part 4. Section 31 relates to the making of care orders,. Ancillary to that is the power under section 38 to make interim orders. Section 33 is also relevant. It can be noted that section 37(1) gives the court power:

"Where, in any family proceedings, in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances."

The understanding of those provisions has now been the subject of authoritative guidance and decision by the House of Lords in the speech of Lord Browne-Wilkinson, with which the other members of the House agreed in the case of Re C , to which I have already referred. The general context was stated by Lord Browne-Wilkinson at page 500:

Therefore the context in which section 38(6) has to be considered is this. The child in the care of the local authority under an interim care order pending the decision by the court whether or not to make a final care order. Under the interim care order the decision-making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court. However, for the purpose of making its ultimate decision whether to grant a full care order, the court will need the help of social workers, doctors and others as to the child and his circumstances. Information and assessments from these sources are necessary not only to determine whether the section 31 threshold has been crossed (including the cause of the existing or anticipated harm to the child from its existing circumstances) but also in exercising its discretion whether or not to make the final care order."

"Next, it is true that the subsections (6) and (7) only refer to the assessment 'of the child' and not, as is proposed in the present case, a joint assessment of the child and the parents, including the parents' attitude and behaviour towards the child. But it is impossible to assess a young child divorced from his environment. The interaction between the child and his parents or other persons looking after him is an essential element in making any assessment of the child. This is shown particularly clearly by cases in which the courts have to decide whether the threshold requirements of section 31 are satisfied because of the harm to the child that is likely to be suffered because the child is beyond parental control. How can the court determine that issue without consider the relationship between the child and the parents? The court has no power to order parents to take part in any assessment against their wishes any more than, as the final words of subsection (6) show, the court can order the child to do so if the child is capable of making an informed decision. But what the interests of justice require is not a power to compel the parent to take part in such assessment but a power in the court to override the powers over the child which the local authority would otherwise enjoy under the interim care order. If the narrower construction were to be adopted the local authority could simply refuse to allow the child to take part in any assessments with his parents."

These citations with regard to the power under section 38(6) demonstrate that there is a line to be drawn and distinctions to be made. First, it is necessary to distinguish between an examination or an assessment on the one hand and something which is more properly described as treatment or therapy on the other. The former comes within the scope of section 38(6), but the latter does not. Further, there is a distinction to be drawn between matters which involve the child alone or the child/ parent relationship on the one hand, and the parents alone on the other side. The former comes within the scope of the subsection, the latter does not. As Lord Browne-Wilkinson said, "The interaction between the child and his parents or other persons looking after him is an essential element in making any assessment of the child". It still has to be properly described as an assessment of the child.

These distinctions can be easily illustrated. For example, the difference between a scheme for the medical treatment of a parent is clearly something which is not within the scope of the subsection. A parent may need surgery, may need the provision of prostheses, or may need, as was the fact in the present case, psychiatric therapy. Those are not matters which fall within the province without more of section 38(6). They fall on the wrong side of the line.

It is not an answer to say simply that once the surgery has been performed or the psychiatric therapy has been given that one would be able to see and tell how well the parent is performing at that stage. The substance of what has happened in the administration of treatment or therapy is to change the circumstances, not to assess the existing circumstances. Similarly, it is no answer to say that surgery or therapy for the parent will help the child. That is not the question which is raised by the exercise of the power itself. Nor is it enough to say that once the therapy or surgery has been given then an assessment will be made, or even that assessments will be made on the effectiveness of the therapy whilst it is going on. If the substance of the matter is therapy or treatment, then it is not something which the court is entitled to order. If the substance of the matter is assessment under controlled circumstances, then it does fall within the scope of the subsection.

"At this stage in the assessment we feel that a more in-depth assessment at a residential unit is essential and should be undertaken as soon as possible. This placement would need to be fully supervised and in an attempt to test out for longer and more realistic periods of time the parents' ability to cope whist affording protection."

The other matter which emerges from the consideration of the subsection and is expressly covered by what Lord Browne-Wilkinson says is the relationship between the order and the local authority. The order must be an exercise of a power in relation to a child and be one which, as it binds the local authority, binds the local authority as having the interim care of the child . This point can be illustrated by reference to the order that was made in this very case. It does not spell out any programme, it simply says in paragraph 3:

The thrust and substance of the relevant part of the order is that it is requiring the local authority to assume the responsibility for the funding of a particular programme. The programme which the local authority were required by the order to fund was a programme which was described by Dr Baker in the document he submitted under the circumstances described by my Lord in the following terms:

It is abundantly clear from reading the text, and indeed from reading the judgment of the judge, which referred not only to the written evidence but also the oral evidence, that this was a programme for therapy for the parents. Furthermore it was an appropriate programme which was going to extend over a considerable period of time, something of the order of 12 months for the mother; as regards the father it was thought that a further 12 months beyond that, making a total of two years, might well be required.

It can also be commented that it was a programme which was only expected have a limited chance of success. On one side the figure was put at above 50 per cent, on the other side, that is the witnesses called on behalf of the local authority, the chances of success were rated at either nil or very much lower than 50 per cent. That is the character of what the local authority was being required to pay. It is relevant in a situation such as this to ask the question, "What is it that the local authority have been required to pay for?" If the answer that is given is that they have been asked to pay for a course of therapy for the parents, then that is something which does not properly come within the powers of the court under section 38(6). It is not open under that subsection for the court to order therapy for the parents, let alone to order the local authority to bear the cost of it.

In my judgment this order went clearly beyond the scope of what was within the power of the judge under the relevant subsection. I consider it is salutary that this case has come before the Court of Appeal. One can see how easy it is to slide from the situation which was recognised as being legitimate by Lord Browne-Wilkinson in Re C , to a situation which is clearly on the wrong side of the line as is demonstrated by the present case.

In my judgment the judge exceeded the powers open to her and we have no alternative but to allow this appeal. On that ground, as well as the other grounds which have been referred to by my Lord, it falls to us to exercise our discretion in place of the discretion which was wrongly exercised by the judge below. I agree with my Lord for the reasons he has given that we should make a care order in this case. There may be other matters with which we have to deal on this appeal. However in any event this appeal will be allowed and the care order will be made.

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Minors) [1998] EWCA Civ 1263 (22 July 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1263.html Cite as: [1999] Fam Law 206, [1998] EWCA Civ 1263, [1999] 1 FLR 701, [1999] 3 FCR 20

England and Wales Court of Appeal (Civil Division) Decisions