Section 38(6) Assessments: The Rise and Fall – And Rise?

Cyrus Larizadeh, of 4 Paper Buildings, examines the impact of recent cases on the funding of s 38(6) assessments in care proceedings.

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Cyrus Larizadeh, 4 Paper Buildings

This single subsection of the Children Act has given rise to a generation of case law and by all accounts there still appears to be a high level of activity in this area. An application under s.38(6) of Children Act 1989 can be a crucial milestone in the lifetime of care proceedings and detailed up to date knowledge of the principles which govern this area serves as a powerful tool for the care practitioner in pursuing or defending such applications. The key up to date guidance is set out below.

The Re G Principles
Nearly a decade after Re C (Interim Care Order) [1997] 1 FLR 1 HL the House of Lords further reviewed the principles which govern section 38(6) (Re G (Interim Care Order) [2005] UKHL 68; [2006] 1 FLR 601 HL). Their conclusions can be summarised as follows:

i) The Court did have power to direct an assessment of a child including, where appropriate, the quality of the child's attachment to the parents,the degree to which have they have bonded with the child,the current parenting skills of the parents and their capacity to learn and develop,any risks the parents present to the child and how those risks can be managed
ii) The principle focus of the assessment must be the child and the programme must not be focused in substance on the parent and on the improvement of her parenting skills
iii) Any services which were provided must be ancillary to the aim of obtaining the necessary information to make a decision.They must not be an end in themselves. The court had no power to ensure the provision of services beyond this for the child or her family.
iv) The court's jurisdiction is confined to obtaining information about the present capacity of a parent to change learn or develop.
v) It is no part of an assessment under section 38(6) to conduct a continuing assessment over an extended period to see if a parent can improve his or her capacity to provide safe parenting.
vi) It cannot be a proper use of the court's powers under section 38(6) to bring about change.
vii) The Children Act 1989 did not contemplate that an assessment ordered under s.38(6) would take many months to complete. It would be unusual if it were to last longer than 12 weeks.The emphasis was on reaching decisions without delay and what was not permissible under s.38(6) is giving directions for a longer process aiming at bringing about long term change.

Other significant points made are:

viii) Section 38(6) applications should not take up a one hour directions hearing and a one full day hearing.
ix) Assessments should be identified early and clearly and further or other assessments should only be commissioned if they can bring something important to a case which neither the local authority nor the guardian is able to bring.
x) There is no Article 8 right to be made a better parent at public expense.

There were enough helpful observations in Re G to lend support to the argument that it may be within the court's jurisdiction to direct a local authority to fund some short term ancillary counselling/therapy sessions for a parent over the course of a 12 week assessment as part of a multidisciplinary assessment to assess the current ability of the parent to engage with the children in that:

a) Any assessment ordered under s.38(6) of the Children Act 1989 by a court when making an interim care order, is intended to take place and completed over a relatively short period ,focusing on the current position of the child in that period. This is so even though an element of treatment or therapy may, perhaps inevitably, take place during that short period as a result of the engagement of, and interaction with the expert undertaking the assessment. What is not permissible under s.38(6) is giving directions for a longer process aiming at bringing about long term change [Lord Mance]
b) Assessment and treatment may co-exist.[per Lord Clyde]
c) An institution directed to make an assessment may incidentally commence some form of treatment if only to assess whether the case is susceptible to treatment. The jurisdiction of the court is confined to obtaining information about the current state of affairs including, perhaps, a forecast of what future progress might be possible and does not extend to the continuing survey of the affects of treatment. { per Lord Clyde]
d) Any services which were provided must be ancillary to the aim of obtaining the necessary information to make a decision. They must not be an end in themselves. The court had no power to ensure the provision of services beyond this for the child or her family [per Lady Hale].

The Court of Appeal's approach in Re L and H
Re L and H EWCA Civ 213; (2007) 1 FLR 1370 best illustrates the current attitude of the Court of Appeal in this area. The Court of Appeal LJ Thorpe and LJ Wall allowed the appeal and made a s.38(6) direction. LJ Wall gave the leading judgment:

i) Nothing in Re G detracts from the construction of section 38(6) as enunciated by the House of Lords in Re C
ii) An assessment of how the parent's relationship bears up under stress whilst caring for a child and an assessment how a parent manages the practicalities of parenting falls squarely within s.38(6)
iii) A 'bolt on' provision of cognitive behavioural therapy through a GP referral and a couple counselling through Relate were not outside the scope of s.38(6)
iv) The final hearing in care proceedings: must be fair (Article 6 compliant); the court should have before it all the relevant evidence necessary for the decision; parents should be given the chance to demonstrate that they can overcome their difficulties and care for their child; and it would be unfair to deny them that opportunity
v) Lord Templeman's description of the underlying philosophy of the Act in Re KD (1988) 1AC 806 at 812 that, wherever possible children should be brought up by their parents, means that the court should be astute to ensure that the case has been fully investigated
vi) It is the responsibility of the court to ensure that it has the best evidence on which to reach a conclusion about the child's welfare
vii) There was reasoned, objective evidence that such an assessment was worthwhile and the evidence from the proposed residential assessment was necessary for the court to discharge its function
viii) Delay is a factor that be taken into consideration in determining whether an order should be made under s.38(6)

The emphasis in Re L and H on the need for fairness towards the parents when the court considers the evidence it will need in order to make its final decision was further re-enforced by the Court of Appeal in another recent section 38 (6) case Re K (Care Order) [2007] EWCA Civ 697; [2007] 2 FLR 1066.

Funding Assessments
The key funding points relating to section 38(6) applications can be set out as follows:

The LSC's position

Public Funding through LSC is not available for treatment, therapy or other intervention of an educative or rehabilitative nature (see Funding Code paragraph 1.3 amended in this respect with effect from 25 June 2005,cf the position statement dated 8th November 2005 from LSC and the Focus newsletter 49 Dec 2005)
As of 1st October 2007 funding is no longer available through the LSC for residential assessments and pre-residential viability assessments (see Funding Code paragraph 1.3)
Also excluded as of 1st October 2007 is an assessment or viability assessment, whether residential or not, preparatory to or with a view to the possibility of a residential assessment (see Funding Code 2.4)
Neither a court order nor the parties agreement can bind the LSC to providing the funding for such pre-residential and/or residential assessments.
These changes restore the funding position prior to the Lambeth case (see below) when the cost of the residential assessments fell to local authorities in relation to their duties to children in need and with post interim care orders.
According to Focus 54 August 2007 "These changes form part of the reforms designed to maintain access to quality advice for clients and to ensure sustainable public funding system for the future".
The details of the changes are available on www.legalservices.gov.uk on both the Funding Code and Children and Families pages
The changes apply to any disbursements occurred on or after 1st October 2007 regardless of the date of issue of the certificate or court direction
Any queries should be sent to family@legalservices.gov.uk
The Funding Code was made under s.8 Access to Justice Act 1999 and the revision was dealt with in accordance with the requirements of s.9
There was a debate about these changes on the floor of the House of Lords on 25th July 2007 and there was consultation Legal Aid Reform:Family and Family Mediation Fee Schemes published on 1st March 2007 with a response document published on 22nd June 2007 and the Focus newsletter 53 (March 2007 p.5) drew the attention of practitioners to the proposed changes.These are all available for viewing on the above mentioned website.
Funding is still available for medical or psychiatric/psychological assessments of parents and children and community based viability and parenting assessments
The principles of Lambeth and Calderdale and Sheffield cases still apply to these types of assessment

Judicial Guidance on Funding
The most recent guidance in terms of funding can be found in Sheffield CC v V (LSC Intervening) (2007) 1 FLR 279. Bodey J held:

i) Directions under s. 38(6) of the Children Act 1989 should not be made until the court has had the opportunity to examine in appropriate but not excessive detail the scope and nature of the proposed assessment
ii) To facilitate this, the assessment-provider should be told before the application that what is required (if appropriate) is an assessment of the child, which can include an assessment of the child's relationship with the carer, of the carer's ability to meet the child's various needs and of the carer's present capacity to change in the reasonably foreseeable future; but that the cost of specific teaching, training, therapy or other educative work would not be paid for under court order and so would need to be separately negotiated, eg with the local authorities
iii) The parties need to have obtained from the assessment provider clear information as to the nature of the work it expects to undertake, together with the overall cost per week and the number of weeks likely to be required, bearing in mind that a 2-3 month assessment is likely to be at the outside of the bracket which the court would regard as appropriate to order under s. 38(6)
iv) If therapy, training or treatment is to be specifically commissioned or is regarded as an integral and substantive part of the provider's modus operandi, then the hourly rate and likely number of hours for that particular element and type of work should be separately stated by the provider
v) Upon receipt of this information, and using a collaborative approach, all parties should endeavour to agree (subject to the court's approval) whether and how the costs are to be apportioned, responsibilities to the Community Legal Services Fund being borne in mind. Contentious applications as to funding should be exceptional
vi) If the court does have to rule on a contested funding issue, and a grey area case such as the instant one should recur, the court must stand back, review what work is to take place and form a common sense view (as broad-brush as possible) as to the real object and nature of the proposed assessment and as to the proportion of work which will or may count as treatment, training or therapy, as compared to the proportion of assessment work properly within s. 38(6)
vii) When an assessment is genuinely of a mixed nature, the court should identify work that is outside s. 38(6) and which, therefore, cannot be ordered to be done or paid for. The remainder of the assessment work can then be ordered and the costs apportioned appropriately
viii) The issue of funding should be determined at the same hearing as that at which the application for permission to commission the assessment is determined. If this is not possible, the assessment provider needs to be told clearly that specific teaching, therapy or training, etc, will or may not be ordered by the court nor ordered to be paid by any party
ix) Where a proposed residential assessment appears on the face of it to be an 'assessment of the child' in the broad sense contemplated by the House of Lords in Re C and Re G then any party seeking to say that the assessment will in fact contain elements of teaching, training or therapy should be in a position to establish this to the satisfaction of the court. Otherwise, the very strong probability is that the costs will be apportioned between the parties

The Impact of Current Practice
The practical impact of Re G, the Funding cases and the LSC changes can be summarised as follows:

Any residential assessment is at present to be funded by local authorities and not by LSC
Any viability assessments, preparatory to or with a view to the possibility of a residential assessment, is at present to be funded by local authorities and not LSC
A likely increase in jointly funded community based assessments
Some residential units starting to offer outpatient viability assessments free of charge where there is difficulty in obtaining public funding. Of course there will be charges if the initial assessments lead to further day or residential assessment
Assessment units perhaps starting to shift the costs of short term therapy onto assessments and/or not charging for therapy or charging a nominal or lesser sum for such therapy
Some local authorities agreeing to a collaborative approach on the funding of the therapeutic costs so that funding problems do not prevent necessary assessments from occurring; that is their agreeing to fund the therapeutic element through their share of any jointly funded assessment. Of course the changes in the funding of residential assessments is likely to cause a retreat of this recent practice of funding of the therapeutic element
Practitioners becoming more careful in ensuring that they receive a detailed and careful breakdown of the work and costings early on in the presentation of their application for s.38(6) so that apportionment can take place effectively and properly.
The direction which the court gives authorising a 38(6) assessment as a necessary and proportionate use of public funding at present often confirms that:
- it is indeed an assessment in accordance with Re C and G
- either there is no therapeutic element
- or if there is a therapeutic element defining the amount of its costs and confirming whether these were ancillary to the assessment and whether they are to be funded by the local authority
Parents increasingly attempting to secure the therapy / counselling element which may combine with their proposed assessments from local resources including through the GP referrals and PCTs
Assessments of more limited duration than before (12 weeks or so)
Judicial reluctance to allow applications for s.38(6) to take more than half day /one day. Many being on submissions and/or limited evidence.
An increase in LSC High Cost cases and Case Plans through the inflation of costs because of joint funding orders of multidisciplinary community based assessments.
An anticipated reluctance for local authorities to pursue residential assessments and more contested applications for such assessments due to costs issues.
A return to money defences by local authorities in relation to residential assessments but cf Re C (Children) (Residential Assessments) (2001) 3 FCR 164.It will be inappropriate for a court to require detailed evidence from senior officers of such reluctant local authorities and to insist that they prove a so –called money defence (cf Lady Hale in Re G)
A likely growth in the number of community based assessments
More detailed and thorough core and other primary assessments
Fewer parents going through therapeutic programmes with the aim inter alia of family rehabilitation
Judicial reluctance in approving final care plans where the assessment is positive but where therapy and/or further work is needed and such work or services are not provided for, identified and/or facilitated under the said care plans
The Courts perhaps being able to order that the Local Authority shall fund short term therapeutic counselling sessions where this is ancillary to but nevertheless a part of an assessment of how a parent functions and/or reacts to such therapy/counselling in order to gauge capacity for change in his/her ability to parent a subject child.

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