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Kent County Council v G and Others [2005] UKHL 68: Section 38(6) Assessments and the Intent of Parliament

In the light of the House of Lords decision in the recent case of Kent County Council v G and Others, David Bedingfield of 4 Paper Buildings discusses the role of the judiciary in interpreting the law where the language is ambiguous and the legislative history is incomplete.

Kent County Council v G and Others [2005] UKHL 68: Section 38(6) Assessments and the Intent of Parliament

David Bedingfield, 4 Paper Buildings

The House of Lords' recent reappraisal of s.38(6) of the Children Act 1989, in Kent County Council v G and Others [2005] UKHL 68, throws up several difficult and interesting legal problems. What is the role of the judiciary in seeking to "interpret" a statute? Is it really possible to know the intent of Parliament with any certainty, in particular when the language is ambiguous and the legislative history incomplete? And should the judiciary seek to give a "broad, purposive" reading to a statute clearly meant as remedial, or should the court instead determine only the strict meaning of the statute and, if the reading doesn't do justice in the individual case, shrug its collective shoulders and point to Parliament as the only solution to bad law?

Children lawyers will of course know a great deal of the background to the dispute in Kent County Council. Those who represent parents in proceedings under Part IV of the Children Act 1989 had long argued that the Act, if read strictly, gave to local authorities powers that were not subject to appropriate judicial review. Indeed, the original intention of the framers of the Act provided that care proceedings were to last but 12 weeks. After a care order had been made in favour of the local authority and the child removed from the care of the parents, a parent's remedies would be limited to seeking a discharge of the care order (after six months had elapsed), or, if the parent disagreed with a decision made by the local authority but could not seek the return of the child, making a formal complaint to the authority under s.26 of the Children Act 1989. If not successful, a parent's ultimate remedy was an application for judicial review of the authority's decision.

Early in the life of the Act High Court judges began to expand the power of the court to review the actions of the local authority. In C v Solihull Metropolitan Borough Council [1993] 1 FLR 290, and in In Re J (Minors) (Care: Care Plan) [1994] 1 FLR 253, it was held that in the appropriate case a court could make interim care orders rather than final care orders, providing for a "planned and purposeful" delay before making a final order. During this interim period, a court could seek to mould the local authority care plan in a way that the court believed to be in the best interests of the child.

In both of those cases courts were concerned with "care plans" of the local authority, a concept mentioned neither in the Children Act 1989 nor, to my knowledge, by anyone in the Parliamentary debates leading up to passage of the Act. But courts required local authorities to present to the court a plan for the child's future, and if the court disagreed with that plan, the court had the power to make a further interim care order, state that in its view the plan was not in the best interests of the child, and adjourn the matter in order to let the authority consider its position.

This judicial gloss on the Children Act 1989 was not part of Parliament's overall scheme for the Act. Indeed, as Baroness Hale points out in her speech in Kent County Council v G, Parliament's "intention" was that care cases should last no more than 12 weeks. Parliament believed that after proceedings lasting barely three months a court would be in a position to make a final order, in some cases removing the child from his or her family permanently. Given that the authority would be expected to file and serve final statements two or three weeks before the parents, and the guardian would be expected to file a final report two or three weeks later, it is obvious that Parliament intended that little "assessment" by the authority would take place during the proceedings themselves. The proceedings would really only be long enough to encompass the filing and serving of statements, and then the setting down of the matter for final hearing.

The Act has not worked like that since its date of implementation in October, 1991. Several reasons exist, including a lack of care judges and a failure of many urban local authorities to prepare cases in a timely manner. But by far the most important reason for the Act being re-interpreted by the judiciary is that the Act, as drafted, violates principles of the common law held dear by judges in this country since at least the 17th Century. The judiciary exists to resolve disputes between either individual litigants, or individual litigants and the State. The State, when it appears before common law judges, is merely another litigant, to be treated in a manner much like all other litigants. The judiciary is jealous of this power to decide disputes, and appellate courts in this country have a long history of slapping down government ministers who consider that their particular state agency is above the law.

Courts can decide disputes only when sufficient evidence is adduced for the court to make a reasoned, legitimate decision. Courts in this country do not rubber-stamp decisions made by state agencies; instead, courts seek to gain as much information as possible about the dispute, and will apply common law principles (including rights now seen to be protected by the European Convention of Human Rights) in order to provide a brake on those State actions the courts believe to be illegitimate.

Perhaps no action by the State, outside the purview of the criminal law, is as draconian as the decision to remove a child from the care of his or her parents and place the child for adoption. This is a decision that ruins lives, that causes untold pain and misery for the child and the parent. And of course (as those who practise in this area are reminded every day) this tragic, awful decision in certain cases is in fact in the best interests of the child: it is the best of several bad options facing the State and the court.

But the judiciary in this country simply could not countenance an Act that allowed the state to remove a child permanently after filing one statement from a social worker and one report from a guardian. Courts were reminded often that this decision was permanent and irreversible, and parents and children have "rights" that must be respected by the State. The origins of those rights were not Article 8 and Article 6; instead, the rights were common law rights, including the right to place before the courts evidence relevant to the court's decision.

The role of the courts in this process was assessed by Lord Browne-Wilkinson and the House of Lords in 1997 in the case of Re C (Assessment) [1997] AC 489. As Lord Browne-Wilkinson stated: "The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. . . . The purpose of subsection (6) [of section 38 of the Act] 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." (See [1997] AC at 501.)

Lord Browne-Wilkinson interpreted the Act in this way because to do otherwise violates NOT the Children Act 1989, or the Human Rights Act 1998 (not then in effect). Rather, the Act was interpreted like this because of basic concerns of fairness - in other words, because the fundamental common law right of a litigant facing an horrendous, irreversible decision by the State requires the court to provide to the litigant an opportunity to present to the court all relevant evidence.

It was apparent to all who read the Parliamentary debates regarding the Act that Lord Browne-Wilkinson's reading of section 38(6) was, at best, a strained one. It was clear that the section was in fact enacted in order to limit the assessments of a child by doctors and others. The section clearly was connected to the incident in Cleveland in 1988, when children were repeatedly examined regarding the alleged sexual abuse they had suffered at the hands of their parents. Far from being an invitation to the court to provide further assessments of a child and family, the original intention of section 38(6) was pretty clearly to limit those assessments.

And of course Baroness Hale, in her speech in Kent County Council, pointed out that the "intention" of Parliament had not been followed when the House of Lords gave this broad, purposive reading to section 38(6). Instead, reasoned Baroness Hale, the principal purpose of section 38(6) was not to give to courts the power to seek further assessment of the parents' abilities to care for the child, but instead to limit the number of assessments that a child would have to undergo.

Therefore the section, held Baroness Hale, cannot be used by the court to require a local authority to pay for "assessments" of the parents that involved providing therapeutic help to them, even if the point of the provision of services was to assess whether the parents could care safely for the child after receiving this help. Nowhere in the legislative history of the Act was such a power contemplated; therefore the power to compel the authority to provide these services simply does not exist. "There is nothing in the 1989 Act which empowers the court hearing care proceedings to order the provision of specific services for anyone. To imply such a power into section 38(6) would be quite contrary to the division of responsibility which was the "cardinal principle" of the 1989 Act." (See para 65, speech of Baroness Hale.)

This conclusion was echoed by Lord Scott of Foscote, in the portion of his speech directed at submissions made on behalf of the parents under Article 8 of the European Convention. It was contended by counsel for the parents before the House of Lords that section 38(6) must be given a scope that would give to courts the power in the appropriate case to direct the local authority to provide help for the parent in order for that parent to become a safe and competent carer for her children. Lord Scott was dismissive: "There is no Article 8 right to be made a better parent at public expense." (See para 25 of Lord Scott's speech.)

Baroness Hale, on the other hand, refused to join with Lord Scott's peremptory dismissal of these Article 8 claims. She instead noted that even if the court had power to direct this provision of services (which she doubted), there would inevitably have to be hearings regarding whether any individual authority could pay for the treatment ordered. Baroness Hale did not believe it would be appropriate for the court to have an hour's direction hearing, followed by a day's full hearing, to decide whether or not to make a direction under section 38(6). To Baroness Hale, this would cause delay, and the avoidance of delay, in her understanding of Parliament's intention, is more important than getting it right.

And this is the tragic aspect of this case: in fact, the Cassel's work with the mother did get it right. She was able to maintain the care of her child only because of the work she and the staff at the Cassel engaged in over six months (at a cost, it must be noted, of more than £200,000). The House of Lords, however, having taken the case even though it was now moot because the work had been completed and the family reunited, has determined that it was wrong for the local authority to have to pay for this work. At least according to Lord Scott of Foscote, it would be wrong under any legal provision for a court to order that this therapeutic work be provided, notwithstanding section 17 of the Children Act 1989 and its directive that local authorities "promote the upbringing of . . . children by their families. . ."; and notwithstanding the positive duty imposed on states by the European Convention of Human Rights and the Human Rights Act 1998.

Because the decision by the Lords was purely advisory, and given in the context where the decision was moot, there will be no appeal to Europe. Who would appeal? The mother and child are together, and apparently doing well. The local authority, as the prevailing party, is not going to be filing any appeal papers either.

Where does that leave us? In the right case, parents must still argue that the Article 8 duty, and the section 17 duty, require the court to make interim care orders in those cases where the court has reached the conclusion that further work with the parents would allow those parents to care safely for their children. The question of funding, however, will have to be litigated, and it is clear that the House of Lords believe that section 38(6) does not provide to courts the power to order the provision of these services. The question remains whether, in the appropriate case, a court would have jurisdiction to order the local authority, or the NHS, to provide these therapeutic services under the positive duty to implement Article 8 of the European Convention.

But at least the question of delay will be solved. Who knows? Perhaps Parliament's clear intention that care cases will last only 12 weeks will soon be achieved. No doubt local authorities will use the money saved on litigation to provide appropriate therapeutic services for families in need.

David Bedingfield is the author of The Child in Need: Children, the State and the Law (Family Law 1997) and Advocacy in Family Proceedings (Family Law 2005). He is a tenant of the Chambers of Jonathan Cohen QC, 4 Paper Buildings, London. The opinions expressed here are his own.