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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G (a child), Re [2004] EWCA Civ 24 (27 January 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/24.html Cite as: [2004] Fam Law 325, [2004] 1 FCR 317, [2004] 1 FLR 876, [2004] EWCA Civ 24 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE JOHNSON)
Strand, London WC2A 2LL |
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B e f o r e :
LORD JUSTICE THORPE
and
LORD JUSTICE LATHAM
____________________
G (Child) |
____________________
Eastbourne BN21 4RX) appeared for the appellant mother.
ANDREW McFARLANE QC and GEMMA TAYLOR (instructed by Kent County Council Legal
Services) appeared for the respondent county council.
____________________
Crown Copyright ©
THORPE LJ:
The History
"And upon the applicants, Kent County Council agreeing in principle that it would be appropriate for the family to undergo treatment at the Cassel Hospital with a view to implementing a rehabilitation plan in the community in four months, if appropriate. But being unable today to commit to any funding for such treatment;
IT IS ORDERED THAT;
1. EG to be made the subject of an interim care order to Kent County Council for four weeks, until 30 October 2003.
2. The family are to remain at the Cassel Hospital until the adjourned hearing.
3. The Cassel Hospital do provide a schedule of projected costs for the proposed treatment by 6 October 2003.
4. (a) If the funding for the Cassel is not agreed, West Kent NHS and Social Care Trust be invited to file a statement setting out the basis of their decision about funding by 15 October 2003. (b) The author of the statement be invited to attend court on 22 October 2003.
5. The applicant local authority do file a statement recording funding an alternative resources by 17 October.
6. Any further evidence to be filed not later than 24 hours before the next hearing.
7. The proceedings case No. FD02C00374 concerning JG and those dealing with EG No. FD03C00338 be listed together for all further hearings.
8. The matter be listed for directions on 22 October 2003 before Johnson J.
9. The matter be listed for hearing on 21 November 2003 before Johnson J, time estimate one day."
The Appeal
The Evidence Below
"First of all, as I have indicated, both parents are doing well with us, despite their difficulties. Mother has continued to work in her therapy sessions and we are gaining more of a picture of her past and present issues. This is despite the fact that they were told by their social worker on 9 October that the local authority would not fund under any circumstances, which, if true, is obviously very upsetting for the family. Despite this, they continue to have a positive outlook. This is not to say that there is a considerable amount of work to be done before the family will be safe enough to go back to their community. However, it is my view that there is a reasonable likelihood of success of rehabilitation provided that the family have intensive input for at least a period of some four months. I suggested four months as a compromise the last time we were in court. I made this offer on the basis that there would be liaison with local services who could take on the work, provided the family were safe enough to do so. However, I am concerned that it has been very difficult to move the supervision arrangements in the hospital on in any but the most minute way. For this family to be able to use a four months period of treatment, clearly the supervision would have to be removed within a few weeks. This is something that I could foresee would be quite possible, provided we were given a clear run, as it were.
Up to now, I have not heard of any local package that would involve keeping E with her mother, or indeed, with her father. I understand, at the moment, that there may be a possibility of local therapeutic work, but this would involve the child having to be in a fostering situation, albeit with regular contact. While this might be feasible given no alternative, the fact is that there is an alternative, that is, the possibility of keeping the parents and their child together, while undergoing rehabilitation. While on paper and in theory it may sound an easy thing to simply remove a child from their mother because of funding issues, it would seem quite obvious that this is not in the child's best interests. Also, one would hope to reunite them later. It goes against all principles of child development and it may well be that the lawyers would argue that this would be infringing the child's right to a proper family life. The fact is that E's primary attachment is to her parents, including her mother, and to remove this primary attachment at such a crucial time in her life, would be most undesirable and potentially damaging and to consider this as a reasonable option shows little understanding, in my view, of the nature of child attachments."
"FG attended an appointment with me on 8 October 2003 in order to talk about her treatment needs, and to consider whether or not West Kent NHS & Social Care Trust is prepared to pay for her to receive further treatment within the Cassel Hospital.
I was asked to see Ms G in my capacity as consultant psychotherapist to the Trust and because I was the lead clinician for our personality disorder service for West Kent NHS & Social Care Trust. I have held this post within the Trust for nearly nine years and have been involved in the treatment of people with severe personality disorders within the Health Service and outside it for the past thirty years."
"I did not feel that the severity of her mental health needs were such that she requires inpatient treatment for her condition. West Kent NHS & Social Care Trust provides both outpatient and day therapy within the psychotherapy department. I also have a relationship therapist who could provide partner therapy for Ms G and her partner should this prove helpful. I felt that ongoing work with Ms G would probably be best achieved over a longer period of time and that this work would be best done with her in her own home environment. I understand that social services and Cassel Hospital may wish for a further period of assessment of Ms G's parenting skills and the dynamic strengths of her family group. However, this itself is not a mental health requirement. I would therefore not be prepared to fund a further period of assessment and treatment within the Cassel Hospital from mental health funding but could undertake to see Ms G on her discharge from the Cassel in order to form a therapeutic alliance with her here and in order to consider a long term therapeutic plan for her within this Trust."
"1. This statement has been prepared for the hearing listed in the High Court on 22 October. The statement has been prepared following receipt of the costing of the treatment proposal sent by the Cassel Hospital to Kent Social Services on 21 October 2003.
2. The schedule lists a final cost for four month's treatment of Ms G and Mr C as £61,274.00. This cost is in addition to the costs for the assessment process ordered at court, estimated to be in excess of £100,000,00.
3. Please refer to the statement of the social worker Nikki Shaw detailing the views of the West Kent NHS and Social Care Trust in respect of the assessed need of this treatment as undertaken by Dr Ruth Hirons. Dr Hirons does not consider that Ms G requires inpatient treatment, and has identified local community resources that can fulfil this requirement.
4. I have detailed in my previous statement to the court dated 11 August the need for the local authority to provide value for money in respect of very limited resources. Kent Social Services has to ensure that the statutory duties and responsibilities of the local authority are maintained.
5. The district budget for 2003.04 is approximately £1.88M. This has to provide for all looked-after children in the district and provide services for children on the Child Protection Register as well as preventative services for a population of approximately 104,000 people.
6. The cost of the assessment process at the Cassel Hospital has created additional pressures on this year's budget, and savings have had to be found from other budget headings. This has included maintaining high staff vacancy levels and postponing plans to extend preventative services in the district in order to achieve a budget balance for this financial year.
7. Kent Social Services are not able to assist in the funding for the proposed treatment programme at the Cassel Hospital for this family. Appropriate community resources are available and the social work report currently before the court details the plans for E during the delivery of this treatment programme."
The Judgment on Jurisdiction
"It seems to me that I should stand back from the facts and reports to enable me to decide broadly and not narrowly whether what is proposed is assessment or therapy. It seems to me that in the circumstances of this case what is proposed falls very clearly on the side of therapy rather than assessment."
"The rehabilitation of such difficult families involves ongoing assessment in a way that is quite distinct from ordinary kinds of treatment; because the risks are potentially high and because the kind of work is very difficult, in order for rehabilitation to succeed, there has to be ongoing assessment at each of the various stages. It is not that easy to distinguish assessment from treatment, as such. There needs to be an assessment of sustainability of change."
"Q – I would like to ask you, if I may, about the work that is done at the Cassel in the context of the debate which lawyers have in terms of assessment and treatment?
A – As his lordship mentioned, he has my views two years ago which in some ways haven't changed but I have thought of other things since. In terms of what I feel is relevant to this particular case is that this is a highly complex case involving initially very high levels of risk and high levels of anxiety because of the previous child's death, great doubts about the mother's capacity. She has come a long way but, in my view, has a long way to go. I think it is going in the right way and the father of course doesn't have such a history and that is also a positive factor. There is a long way to go and while there has been change I still have to assess how much change is sustainable. The phrase I came up with in discussion with my medical director of a big trust who happens to be a child psychiatrist and like me he was appalled at the removal of the child and then rehabilitating later. She thought that was absurd. She came up with the idea that you are assessing the sustainability of change with these kinds of cases, not in ordinary cases. One doesn't say that goes on for ever but it goes on significantly more in these kinds of situations than the ordinary runof- the-mill, if you can say that, problem family. If we were able to carry on, in a way there is the continuity. There is the kind of theme of continuity between what is happening and what will happen in the next four months. I don't see that there is a radical break when we change trains, as it were, and the staff change and the assessing changes. It is seen as continuity.
Q – So is the work that you will do in what is sometimes called stage two at the Cassel different from the work which you do in stage one?
A – It wouldn't be different. Because I have agreed also as a compromise for a four month period, it was pragmatic out of court, out in the corridor, ideally I would much prefer longer as you know, because I think that would be much wiser but I was thinking I could do enough to get them back into the community if I am given a free hand with supervision and with the whole setting and if the local people are then as they are to carry on the work then that might well be acceptable. I hoped."
"In fact nothing significantly is different in the sense that the mother will continue to have her sessions, the parents will continue to have the help, we will continue to treat but we will continue to need to assess very carefully the ongoing change, if it is sustainable and are they safe enough to go into their community."
i) On 2 October the local authority had accepted an extension of the admission for seven of the sixteen weeks that were then pragmatically proposed by Dr Kennedy.
ii) By 22 October the family had been undergoing assessment and therapy at the Cassel for four months. Dr Kennedy was advocating an extension of some thirteen further weeks.
iii) The abandonment of the assessment and therapy was opposed by the only available expert evidence, namely that of Dr Kennedy, Dr Van Rooyen and the guardian ad litem, although the guardian's position was not as strongly held as the doctor's.
The Authorities
"The purpose of s 38(6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority's application to take the child away from its parents by obtaining a care order. To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court's judicial decision."
"Next, it is true that section 38(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."
"In the present case, the proposed residential assessment is going to cost some £24,000 and the local authority, taking as it does a gloomy view of the result of the assessment, considers that expenditure on that scale is not a sensible allocation of its limited resources, a decision which it is far better qualified to take than the court. We accept the force of this submission but it proves too much. Mr Harris was not able to argue that if the court directed a medical examination of the child himself, which examination would be very expensive, the local authority could refuse to carry it out simply on the grounds of the expense involved and the unwise allocation of limited resources. In such a case, it will be for the court to take into account in deciding whether or not to make an order for the medical examination the expense that it involves. If that is so, the issue of resources cannot affect the proper construction of s 38(6). The consideration of the resource consequences of making the order must be the same whether the court is making an order for medical examination of the child or an order for the other assessment of the child. Therefore it is impossible to construe s 38(6) in the narrow sense simply because the court is less suitable than the local authority to assess the financial considerations."
"In my judgment, therefore, s 38(6) and (7) of the Act are to be broadly construed. They confer jurisdiction on the court to order or prohibit any assessment which involves the participation of the child and is directed to providing the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order. In exercising its discretion whether to order any particular examination or assessment, the court will take into account the cost of the proposed assessment and the fact that local authorities' resources are notoriously limited."
"However it is clear in my view that after about 8 weeks the Cassel programme clearly changes from an assessment to a treatment phase. As I have already said in his letter of 17 November 1997, Dr Kennedy clearly distinguishes between 'the assessment phase' and 'the course of intensive treatment'.
In my judgment I have no power now to direct an assessment for longer than, on the facts and evidence in this case, eight weeks. I accept the possibility that at the end of 8 weeks a genuine case may exist for a further short period which could genuinely be characterised as further 'assessment'. But at some point assessment necessarily merges into treatment, and at that point the power of the court ends."
"The Cassel 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."
"It seems to me that it is difficult to contend that the essential character of the referral is lost at the conclusion of the first period of assessment."
"The evidence provided on costs by the local authority was one letter provided two days before the hearing, with no oral evidence to back it up and no opportunity either for the parents or for the guardian to test such evidence by way of the usual form in the English courts of oral cross-examination … That is, in my judgment, a very unsatisfactory way for a local authority to provide evidence on a crucial issue; indeed, as it turned out, the only effective issue before the court."
The local authority's shortcomings in the present case were equally if not more extreme.
"[35] I agree as far as s 38(6) is concerned, I respectfully draw two conclusions from those observations. The first, as emphasised by Lord Browne-Wilkinson, is that in the case of an interim care order, the function of an order under s 38(6) is to inform the court, in any way that it thinks necessary or appropriate, in the performance of its duty to decide whether or not there should be a final care order.
[36] Secondly, looking at the matter purposively, it seems to me clear, that the court is given a very broad and generous power of determination in deciding what is appropriate and what is not appropriate in respect of the assessment of the child in the interim period. In this case, as my Lord has pointed out, the judge did not have the benefit either of the submissions or of the information that I have received in respect of the available resources and necessary circumstances of the assessment of this small child before the question of a final order is considered."
"Courts at first instances should be considering whether the proposed course of action is an appropriate measure to provide the court with material necessary for its decision. If the proposal meets this criterion, it is immaterial if it also leads to provision of
accommodation
training
therapy
medical treatment
social support
or any number of any other desirable activities."
We are in no doubt that that submission goes too far. However purposive the construction the statutory language has not that degree of elasticity. However we do not consider that the trial judge should distil the essential question as: is what is proposed assessment or therapy? The essential question should always be, can what is sought be broadly classified as an assessment to enable the court to obtain the information necessary for its own decision? That formulation concentrates the attention of the trial judge on the purposive construction of section 38(6) settled by Lord Browne-Wilkinson. In reality a permissible assessment to enable the court to obtain the information necessary for its own decision is likely to contain, or at the least may well contain, the provision of a variety of services, supports and treatments with or without accommodation. Applications under section 38(6) will fail if what is proposed is not required to enable the court to obtain the information necessary for its decision, if the child is only peripherally involved, if what is proposed is a bare treatment programme for one or both parents or if the cost of what is proposed has been established to be prohibitive. The perspective must always be that of the court rather than the perspective of the family. What the court commissioning the admission will see as assessment may well be experienced by the family, admitted as patients, as therapy.
The Human Rights Act
1998
"In my judgment the cases on section 38(6) and the guidance in Re S; Re W [2002] 1 FLR 815 (and the cases referred to therein) should be read with the passages at page 327 of L v UK [ECHR 2000] 2 FLR 322 relating to fairness of proceedings, paragraph 99 of the speech of Lord Nicholls in Re S; Re W … and paragraph 119 of the judgment in PC & S V UK [2002] 2 FLR 631."
The Exercise of the Judge's Discretion
"The view I formed was based upon the generality of the situation and what is common knowledge that social services resources are seriously underfunded –
I read Mrs Grogan's evidence simply by way of observation and not as the basis for exercising my discretion. I relied upon my understanding myself as a judge all too aware of the resources difficulties."
That response is in our judgment unsustainable. Mrs Grogan's evidence was limited to constraints on the Tunbridge Wells District, serving a population of 104,000 with an allocated budget of £1,88m. Clearly the mother's counsel were entitled to test the wider context of the county budget and its provision for exceptional items, such as residential assessment out of the county. Whilst accepting the judge's entitlement to take judicial notice of the general matters to which he referred, our conclusion is that in common law terms the parents were denied a fair trial on the issue of funding. Equally on this issue there was a breach of their rights under Art 6(1) of the ECHR.
(i) the decision of Holman J in re M should not be treated as a guideline case;
(ii) the impact of theHuman Rights Act 1998 on the determination of S 38(6) applications must be recognised;
(iii) a case advanced by a local authority to establish that the cost of the assessment sought is excessive or disproportionate must be substantiated by evidence and the witnesses relied on must be available for cross examination, unless otherwise agreed or directed. The case may not be accepted if presented only by reference to the budgets for some district within the local authority's territory.