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L (A Child) and H (A Child) [2007] EWCA Civ 213

Application for permission to appeal an order that refused a request for a residential asessment of a child under s. 38(6) of the Children Act 1989. Appeal allowed and order set aside.

The local authority had argued that the standard of parenting was so transparently poor that an assessment under s 38(6) would serve no purpose. Wall LJ rejected that argument principally on the grounds that the judge had erred in law as he did not appreciate that the residential assessment is not simply an assessment of the parents but of the family as a whole. It would be unfair not to have that evidence before making any firm decisions on the future of the child.


Neutral Citation Number: [2007] EWCA Civ 213

Case No: B4/2007/0335
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/03/2007
Before :

- - - - - - - - - - - - - - - - - - - - -
Between :

CT (1st Appellant)
PH (2nd Appellant)
- and -
Bristol City Council (1st Respondent)
PL (2nd Respondent)
SL & MH (3rd Respondent)
- - - - - - - - - - - - - - - - - - - - -

L (A Child) and H (A child)

- - - - - - - - - - - - - - - - - - - - -

Kay Firth-Butterfield (instructed by AMD - Solicitors) for the 1st Appellant -
(who was not present)
Charlotte Pitts (instructed by Hoole & Co- Solicitors) for the 2nd Appellant –
(who was not present)
Caroline Budden (instructed by the Local Authority) for the 1st Respondent
The 2nd Respondent was not present and was not represented
Catriona Duthie (instructed by the Guardian's Solicitor) for the 3rd Respondent

Hearing date : 1st March 2007
- - - - - - - - - - - - - - - - - - - - -

Lord Justice Wall:

1. The mother and the putative father of a male child born on 11 January 2007 (whom I will identify only by the initial M) seek permission to appeal against the refusal by His Honour Judge Ticehurst, sitting in the Bristol County Court on 29 January 2007, to order a residential assessment of M pursuant to section 38(6) of the Children Act 1989 (the Act).

2. The judge was hearing applications in care proceedings brought by the Bristol City Council under Part IV of the Act in relation M and to another female child born to the mother on 30 December 2005, whom I will identify by the initials SA. The father of SA (whom I will identify by the initials PL) claims also to be the father of M, and that issue awaits the outcome of DNA testing. The mother's case, however, is that the father of M is her current partner, PH, with whom she has been in a relationship now for about a year, and for the purposes of this judgment I propose to assume that this is so. I will, accordingly, refer to PH from time to time in this judgment as "the father".

3. We heard argument in the case on 1 March 2007. At the outset, we gave permission to appeal, and at its conclusion announced that the appeal would be allowed. However, it is apparent that the case (1) raises important questions relating to both the purpose and the proper use of section 38(6) of the Act; and (2) requires this court to re-visit the two key decisions of the House of Lords in the field, namely In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, (Re C) and In re G (A Minor) (Interim Care Order: Residential Assessment) [2006] 1 AC 576 (Re G). Accordingly, we reserved the reasons for our decision, which we now give.

4. As these are ongoing proceedings, reporting restrictions will apply, and nothing must be published which in any way identifies the children concerned or their parents. The only exceptions to this restriction are my identification of the local authority involved and the consultant clinical .psychologist brought in to the case to make assessments of the mother, PH and PL.

The history
5. To understand how the particular question in the case arises, it is necessary to look at the history of both the mother and of PH in some detail.

6. The mother was born on 29 June 1981 and is thus still only 25 years old. She has, however, already had five children by five different men. Her first child, a girl (L) was born in October 1997, when the mother was 16, although she was clearly conceived when the mother was 15. In the judge's words, the mother "struggled to care adequately" for L. In the event, she was unable to do so, and L was made the subject of a residence order in favour the child's maternal grandmother. The judge records that there has been no contact between the mother and L for some years.

7. The mother's second child was a boy, J, born in December 2003. Once again the mother "struggled" to care for him. Her third child, a daughter, S, was born in December 2004. S's father was a Schedule 1 offender and that fact, in addition to concerns about domestic violence between the couple, combined with abuse and neglect of J led to the removal of both S and J from the mother's care on the day that S was born. Both children were made the subject of care proceedings and subsequently adopted outside the family.

8. The mother's fourth child is SA, who is the subject of the current proceedings. She is now 14 months old. Her father, PL, is a party to the proceedings. His case is that he would wish to care for SA. Perfectly sensibly, however, he did not appear on this appeal, although his solicitors made it clear that he opposes it.

9. SA's name was placed on the local authority's child protection register in January 2006 on the ground of neglect, and on 23 February 2006 she was removed from her parents' care under emergency police protection powers. She has since then remained in foster care pursuant to interim care orders, the first of which was made in May 2006. Given her age, it is clear that a decision as to her future placement should be made as soon as possible.

10. As I have already stated, the mother's fifth child, M was born on 11 January 2007, and was less than three weeks old when the judge delivered his judgment. Although, as I have already stated, the dispute about M's paternity has yet to be finally resolved by DNA testing, the judge appears to have proceeded on the basis that PH, with whom the mother is living, is indeed his father. On any view, however, it is clear that the mother ceased her relationship with PL, began her relationship with PH and conceived M all in a very short space of time.

11. It comes as no surprise, looking at the history, that M was removed from his mother at birth, and joined to the already existing care proceedings relating to SA. Those proceedings have been time-tabled to a final hearing in the in the Bristol County Court on 5 July 2007, with a time estimate of 5 days.

12. The mother and PH wish to care for SA and M. To that end, the mother applied to the judge on 26 January 2007 for a residential assessment of M under section 38(6) of the Act, with the possibility that SA would join the assessment at a later stage if appropriate. In that application, she was supported by PH, who was deemed by the judge to have made a similar application. The two applications were, however, opposed by both the local authority and the guardian, and refused by the judge, who also refused permission to appeal. There were other orders made by the judge which are immaterial for present purposes.

13. On 25 February 2007, after considering the applications for permission to appeal on paper, I listed them for oral hearing on 1 March 2007, with appeals to follow if permission was granted.

The context: the report of Dr. Michael Drayton
14. In order to put the judge's judgment in context, it is necessary to record that at an earlier hearing in the proceedings, prior to the birth of M, the court had directed a psychological assessment of the mother, PL and PH. This had been carried out, on joint instructions, by Dr. Michael Drayton, a consultant clinical psychologist, whose report is dated 26 October 2006. Dr Drayton also gave evidence to the judge. In my judgment, his report is an impressive piece of work.

15. One of the principal arguments advanced by the local authority and the guardian in the instant case is that both the mother's and PH's history of parenting is so poor, and their overall deficiencies as parents so transparent, that an assessment under section 38(6) serves no purpose. It is therefore important, in my judgment, to examine the background of both the mother and PH with some care. I propose to do so, however, through the independent eyes of Dr. Drayton who, as it seems to me, had access to all the relevant material, and made assessments of each of the parents which are both thorough and realistic.

16. We do not have the letter of instruction to Dr. Drayton, but he records his instructions in relation to the mother (they are the same, mutatis mutandis in relation to PL and PH) in the following terms in his report: -

2.1: I am instructed to carefully consider the bundle of documents enclosed with my letter of instruction and carry out a comprehensive psychological assessment of (the mother) and prepare a psychological report giving an opinion on the following questions:
2.2 A general assessment of her parenting ability, with particular regard as to whether she can prioritise the needs of SL and any other child.
2.3 An assessment of her relationship history, including her current relationship with PH.
2.4 Please advise as to whether she has the capacity to change in her parenting ability, if appropriate and whether such change can be done within a timescale to meet the needs of SL or that of the unborn child.
2.5 Please advise as to what support and/or treatment you would consider necessary. Please comment, in particular, as to whether a residential assessment would be appropriate. (Emphasis supplied)

It is, I think, important to note that Dr. Drayton was specifically instructed to consider the very issue which forms the subject matter of the appeals.

17. The thoroughness of Dr. Drayton's work is demonstrated, in my judgment, not just by the length of his report and the detail which it contains, but also by the range of issues which he discussed with those whom he was assessing. Thus, in the report on the mother, in addition to undertaking psychometric testing and reporting on the results, Dr Drayton reports on the detailed discussion he had with her about the relationships she had with the fathers of her children. There are also headings dealing with domestic violence; contraception; the mother's understanding of the reasons for SA being taken into care; her history of self-harming and overdosing; her understanding of her parenting difficulties; her attitude to social services; her experience of a previous, non-residential assessment; her perception of SA's needs; her perception of her own need for therapy; her experience of sexual abuse; her personal history, including her childhood and education; her history of employment and drug abuse; and her mental state.

18. Dr Drayton summarised his conclusions in paragraph 1.6 of his report, which deserves citation in full:-

This report will show that (the mother) is a woman functioning in the 'Borderline Learning disability' range of intellectual and cognitive ability (IQ 79). (Her) personality profile indicates that she is a histrionic and somewhat paranoid woman. She had an unsettled childhood characterised by sexual and emotional abuse. This was followed by a history of unstable, violent and stormy close relationships. In my opinion (the mother) probably does have the necessary intellectual abilities and motivation to provide good enough parenting for SA and her unborn child. However, I am less convinced that she possesses the necessary emotional resources to achieve this. I am particularly concerned about the long term stability of her relationship with PH. Any parenting problems are likely to arise as a by-product of domestic conflict rather than any parenting deficits as such. Any risk to SA would arise indirectly from possible conflict in the relationship or breakdown of the relationship. Unfortunately, both partners do have a track record in this respect. I strongly recommend that this family are offered a residential parenting assessment before any firm decisions are made regarding SA's future. (emphasis supplied).

19. In my judgment, this is an accurate summary of the mother's history. Dr Drayton spent a considerable amount of time with the mother, and all his observations about her appear to be soundly based.

20. After setting out and commenting on the psychometric tests he had conducted, Dr Drayton devotes Part 4 of his report to his opinion on the four specific issues on which he was asked to comment, and which I have set out at paragraph 16 above. Although the citations are lengthy, I propose to select a number of extracts which, in my judgment, give the flavour of Dr. Drayton's work. I will, moreover, set out the entirety of his opinion on the issue identified as 2.2 at paragraph 16 above, namely Dr. Drayton's assessment of the mother's parenting ability:-

4.2 The documents indicate that (the mother) had a very difficult childhood, characterised by emotional and sexual abuse. There are a number of entries in her medical records that attest to the fact that she was a very emotionally troubled girl. (The mother) informed me that she took an overdose at the age of nine and was also in the care of the Local Authority following the disclosure of sexual abuse.

4.3 The documents go on to suggest that (the mother) grew up into an equally emotionally troubled young woman, at times engaging in self harm and becoming involved in a number of stormy and unstable relationships with men who often perpetrated domestic violence upon her. (The mother) has three other children who are either in the care of the Local Authority or have been freed for adoption. Many of the difficulties with (the mother's) parenting in the past have resulted from her failure to prioritise her children's needs after becoming involved in highly conflictual relationships with unstable and violent men. In the past, the documents suggest that (the mother) has experienced much difficulty in caring for herself in an appropriate manner, let alone being able to care for dependent and vulnerable children.

4.4 This history will be of great concern to the Court because often the best predictor of future behaviour is past behaviour. This is of particular concern when we note that (the mother's) current partner, PH has a similar history to (the mother), of becoming involved in stormy and unstable relationships with psychologically and emotionally vulnerable women.

4.5 I assessed (the mother's) intellectual and cognitive capacity and found her to be functioning at the top end of the Borderline Learning Disability category. (The mother's) verbal and language skills were far better than her practical problem solving skills. This would give her a veneer of social competence that masks her very real difficulty in thinking through stressful situations in a considered and rational manner. This would result in her responding to stressful situations in a somewhat thoughtless and impulsive manner.

4.6 Similarly, formal assessment of her personality indicated that she has strong histrionic and paranoid traits. This again would result in her overreacting to stressful situations in an overly emotional and dramatic fashion. She will also tend to blame others for her problems and resist taking responsibility for her behaviour.

4.7 On a more positive note, it seems that, at first sight, (the mother) is actually involved in a stable and mutually supportive relationship with PH. Given the background of both partners one has to be somewhat guarded about the prognosis of this relationship. Nevertheless, the evidence to date shows that the relationship does seem to be a predominantly positive one.

4.8 I felt that (the mother) did her best to engage with me during the assessment and did her best to cooperate fully. Although she was very nervous I felt that she engaged in the assessment in an open and straight-forward manner. Furthermore, I felt that (the mother) had a reasonable degree of insight into her past difficulties and was able to accept responsibility for her past mistakes in life, and express appropriate remorse for these.

4.9 Bringing these strands together I feel that (the mother's) past history of emotional and sexual abuse will have a significant impact on her current parenting ability. As a child she was provided with few containing experiences. From these experiences she will also have developed a very distorted model of family life and parenting. Because of her experiences she has developed into a woman who has low self esteem and who is overly emotional and attention seeking. Because of this, she seems to have been drawn into relationships with men who have treated her badly. These relationships have often been characterised by domestic violence and instability.

4.10 It is within this context of disturbed adult relationships that the neglect of (the mother's) previous three children occurred. Because (the mother) was preoccupied with the stormy and unstable relationships she has found it difficult to prioritise her children's needs for physical and emotional security above her own emotional neediness.

4.11 Rather like PH, I feel that (the mother's) difficulty in being a parent is not caused by her relationships with her children per se but should be viewed in the context of these disturbed adult relationships. In other words, I feel that if (the mother) and Mr H are able to sustain a stable relationship in the long term then any problems in parenting will be relatively minor. Whether they are able to actually achieve this, only time will tell.

4.12 In my opinion, (the mother) does have the necessary intellectual and cognitive ability, and understanding, needed to prioritise the needs of her children over her own needs. I am less certain whether she has the necessary emotional resources to achieve this. I would strongly advise the Court, before it makes any firm decision, to seek more evidence on the capacity of (the mother) and Mr H to manage conflict and stress within their relationship. I feel that the ideal situation to gather such information would be through a Residential Parenting Assessment, which I recommend below. In my opinion, (the mother) and Mr H have the potential to be viable parents to S and I thus feel that the time and expense of a Residential Parenting Assessment would be warranted.
(Emphasis supplied)

21. In my judgment, this is a clear and well-reasoned opinion. Dr Drayton's assessment of the mother's relationship history goes on to describe all of her previous close relationships as "disturbed", and lacking in boundaries. He describes her attitude to contraception as irresponsible. His view of her current relationship with PH was that it had both supportive and risk factors. He summarised the risk factors by reference to both partners' history of disturbed adult relationships. He identified a further risk factor in that the mother and PH often shouted at each other a little too much when under stress. He added:

Domestic violence is usually the result of a gradual escalation of verbally aggressive encounters when the couple are stressed. In other words, the verbal aggression, or shouting, described by (the mother) in her relationship with (PH) is perhaps the thin end of the wedge which could escalate into more serious forms of violence.

22. He concluded on this point, however, that:-

….. on the whole, the relationship between (the mother) and (PH) is a positive and supportive one. Nevertheless, there is much evidence that would indicate caution as to its prognosis.

23. On the mother's capacity to change, Dr Drayton linked this into her relationship with PH:-

I do feel that (the mother) has the necessary intellectual capacity and motivation to change her parenting and provide good enough parenting for SA and her unborn child. However, I feel less convinced that she has the necessary emotional resources to achieve this. Whether (the mother) is able to change, I feel, will be largely dependent on the long term quality of her relationship with PH. If this relationship remains relatively stable and supportive, then I feel that (the mother) does have the ability to change her parenting in a timescale commensurate with SA's needs. I feel that if the relationship becomes unstable then (the mother's) own emotional needs would probably take priority over her children's needs. Again, I feel that before the court make any definite decisions with regard to SA's future further information and evidence from a residential parenting assessment should be requested (Emphasis supplied).

24. On the question of support and / or treatment - and in particular whether or not a residential assessment would be appropriate, Dr. Drayton repeated the view he had already expressed:-

4.23 I would strongly recommend that (the mother and PH) undergo a Residential Parenting Assessment. I feel that this would give professionals involved in the case important information on how well (the mother) manages the practicalities of parenting. However, I feel that more importantly a Residential Parenting Assessment will give professionals and the Court important, if not vital, information on how (the mother's) and PH's relationship bears up under stress. I feel that any serious flaws in their relationship should become apparent in the context of a Residential Assessment. Hopefully, this will not prove to be the case.

4.24 In my opinion if a Residential Parenting Assessment goes ahead, the professionals involved should focus, as I have said, on the quality of the relationship between the parents. (The mother) herself identified that she experiences problems when playing with SA. This also should be a focus of help and intervention for (the mother). In terms of her learning disability, I do not feel that (the mother) would need any specialist services or support to be put in place. However, I do feel that any professionals working with the family should be made aware of (the mother's) difficulties, and how these difficulties are often masked by her good social presentation. I feel other issues that professionals should be explicitly made aware of are (the mother's) impulsiveness, her low self esteem and her tendency to histrionics. (The mother) is a somewhat immature and self centred young woman who is prone to becoming very excitable and perhaps tearful when she is confronted with her problems and with difficulties in general. Therefore, professionals working with the family should adopt an approach that emphasises confidence building and skills enhancing. This is in contrast to a more challenging approach which may suit more robust parents.

Dr Drayton's assessment of PH
25. Having given the flavour of the thoroughness of Dr. Drayton's report, I can, I think, take his assessment of PH more succinctly, although it is as full, careful and detailed as that relating to the mother. Dr. Drayton's summary, at paragraph 1.6 of the section on PH reads as follows:-

This report will show that in my opinion PH is a man functioning in the 'Average' range of intellectual and cognitive ability (IQ 102). PH's personality profile indicates that he is an energetic and extravert man who can experience low tolerance of frustration and impulsivity. He is somewhat cynical and experiences problems being assertive. He had an unsettled background and a history of stormy close relationships. In my opinion PH does have the capacity to provide good-enough parenting for SA and his unborn child. Any problems are likely to arise within the context of his relationship with (the mother), rather than any parenting deficits he may have. Any risk to SA would arise indirectly from possible conflict in the relationship or breakdown of the relationship. Unfortunately, both partners do have a track record in this respect. I do feel that PH can minimise the risk of conflict in the relationship by engaging in psychological therapy to improve his ability to be assertive. I do not feel that he needs a residential parenting assessment as such. However, I do feel that (the mother) should undertake such an assessment, and, as such, PH should participate, so they can be assessed as a couple.

26. Given what he aptly described as PH's history of "stormy and volatile relationships with women", Dr Drayton was, in my judgment, right to be concerned about the long term prognosis for PH's relationship with the mother. His view was that there was no evidence of PH neglecting or mistreating children; but there was a clear history of his inability to sustain a mutually supportive and stable relationship with his partners. As is, however, clear from his report, Dr Drayton thought that any risk to a child would arise in the context of a breakdown or stress in the relationship between the mother and PH.

27. I note in passing that the "stress" to which Dr Drayton refers is not specifically identified. In the context of a residential assessment, however, the stress under consideration (as the balance of Dr Drayton's report makes clear) is plainly that of caring for a very small child in a strictly controlled and closely observed environment: see paragraphs 29 and 80 below.

28. In paragraphs 4.27 and 4.28 of his report on PH, however, Dr. Drayton commented:-

4.27 Some reasons for optimism include the facts that PH is now older and perhaps wiser than when he entered into his previous relationships. He has participated in a number of parenting interventions and a fathers group.

4.28 In the assessment he struck me as a thoughtful and intelligent man with the capacity and motivation to learn from past experience. Personality assessment did not indicate any major risk factors in his personality, although he does tend to suffer with an excess of energy, low frustration tolerance and impulsivity. However, these could be addressed by psychological therapy.

29. On the question of the support and / or treatment he would advise for PH, Dr Drayton did not feel that the court would probably learn a great deal more about PH's ability to parent from a further residential parenting assessment. However, the mother would benefit and in Dr. Drayton's view she should be accompanied by PH. Dr Drayton thought that this would "be very helpful to the Court because it would give professionals an opportunity to observe, not only (the mother's) parenting skills, but how the couple work together, and manage conflict in a, at times, stressful environment". In this context, Dr Drayton repeated his view that the parents' relationship was still in its early days and that both partners had acknowledged that they shout at each other too much. This, Dr Drayton thought, was not a helpful way of handling conflict. In his experience, domestic violence did not just start but rather escalated from verbal arguments, to shouting to each other, then to physical violence.

30. Dr Drayton felt that therapeutic input was required to assist in this respect. As this part of Dr. Drayton's evidence appears to have been misunderstood by the judge, I propose to cite several paragraphs of Dr. Drayton's advice on this topic. As will, I hope, be clear, Dr. Drayton was not advising that therapy should form part of the programme devised by the Family Resource Unit which had agreed to conduct the assessment (hereinafter referred to as the FRU) but that simultaneously with the parenting assessment, the parents should look to other sources for therapeutic help.

31. Dr Drayton put the matter in the following way:-

4.44 I feel that in order to minimise any deterioration in the relationship between (the parents) PH would greatly benefit from a short number of sessions of cognitive behaviour therapy (CBT) to specifically address how he handles conflict with (the mother). This therapy should specifically concentrate on improving PH's ability to be assertive in his relationships (as apposed to being passive or aggressive). I do acknowledge that PH probably would not feel terribly motivated to undertake such therapy but nevertheless I do feel that it would be very beneficial to him. In my view, PH would probably need somewhere between six to ten sessions of therapy to achieve progress. This therapy should be available on the NHS, via a referral from his GP. (Emphasis supplied)

4.45 I also feel that it maybe beneficial to (the parents) to engage in a short number of sessions of couple therapy, in order to think through and discuss as a couple, how they handle conflict. Such sessions could be provided at minimal cost by RELATE. (Emphasis supplied) At the very least, I would advise that they sit down for an hour or so with one of the social workers involved in the case (emphasis supplied) to discuss alternative strategies of managing conflict other than by shouting at each other. The professional involved in this would want to emphasise the negative impact of conflict between the couple resulting in shouting would have on SA and (the mother's) unborn child. The professional involved would also wish to emphasise how easily such shouting matches can escalate into something more serious. Also, if (the parents) do engage in a residential parenting assessment I feel that the manner by which they handle conflict with each other should be specifically addressed during this assessment.

4.46 In conclusion, I do feel that PH would benefit from a therapeutic intervention with the goal of increasing his ability to respond to conflict in his relationship with (the mother) in an assertive rather than aggressive manner. I feel that any threat to the wellbeing of SA and (the mother's) unborn child would arise within the context of arguments between the parents and therefore I feel that this risk must be specifically addressed.

32. In my judgment it is perfectly clear that Dr Drayton was suggesting concurrent therapeutic interventions organised by others, and not therapeutic interventions as part of the residential assessment provided by the Family Resource Unit.

33. Dr Drayton's assessment of PL is not material to these appeals, and I therefore say no more about it, save to comment that it appears to me as thorough and as impressive as the assessments he made of the mother and PH.

The evidence from the Family Resource Unit (FRU)
34. The report from the FRU is in our papers, and its author gave evidence to the judge. It is, I think, sufficient to set out four paragraphs from the FRU's evaluation, and its recommendations. These are as follows:-

5.14 The couple clearly showed that they have the ability to think through issues discussed with them about the protection of their children. They were able to make the necessary links between different types of abuse and appeared motivated and engaged to discuss their views and experiences.

5.15 However, it is clear that the couple both minimise the abuse that their children have suffered and (the mother) in particular accepts little or no responsibility for her actions towards her children and minimises her part in what the court papers describe to be severe neglect and emotional abuse.

5.16 It is interesting to note that PH stated that he would "do time" for anyone who has abused children but does not recognise that he and his own partner have perpetrated such abuses upon children and this suggests that he has not fully considered the affects of his and the mother's actions upon children in the past.

5.17 However, such levels of minimisation and lack of responsibility taking does not preclude the couple from coming to (the FRU). They were clearly able to engage in discussion about this and were open to challenging on various issues. They appeared willing to participate and appeared able to work with the structure and format of the sessions that could be undertaken. What is clear is that the couple clearly need to be challenged on their perception on the abuses that they have perpetrated and that each other have carried out, in order to provide protective parenting to SA and their unborn child.

35. The recommendations are contained in section 9 of the FRU report, and are in the following terms: -

9.1 (The FRU) would be willing to offer a residential assessment of PH and (the mother) as parents. However, this is not without its risks. On that basis we would recommend:

9.2 High levels of monitoring through the day and an overnight monitor for the first two weeks of any placement, to ensure the unborn baby's needs are met and remain the couple's first priority.

9.3 The couple would need to agree to a safety plan being signed prior to the placement starting, in regards to their relationship and keeping their child safe.

9.4 The couple would need to agree to the high levels of monitoring and recognise that this would mean not being able to leave the Unit unaccompanied without staff for at least two weeks and that they cannot 'run' their life as if living in their own home. The couples' priory commitment (sic) would need to be the assessment of their children, first and foremost.

36. In my judgment, "priory" in the penultimate line of this citation is a clear misprint for "priority". We were also told at the bar that the matters contained in paragraphs 9.2 to 9.4 of the recommendations were standard terms and conditions required by the FRU.

The views of the local authority
37. In the light of Dr Drayton's thorough and realistic assessment of both the mother and PH, I hope I do not do the local authority's case an injustice if I summarise its approach in terms of the evidence it filed by citing one paragraph only from the social worker's core assessment. This paragraph reads: -

10.8 I feel that neither (the mother) or PH are able to address their parenting capacity adequately to be able to offer all of the emotional, physical, developmental and safety needs of SA and M. (The mother) and PH have many emotional needs of their own which I feel they should address with services for their own needs. I consider these needs to be such that the parents would not be able to prioritise the needs of SA and/or M above their own.

38. I will, of course, set out and address the arguments advanced by the local authority in detail later in this judgment.

The views of the guardian
39. The guardian filed a short report for the hearing before the judge, in which she made it clear that the report should not be considered as anything other than her opinion as to the current situation, and should not be regarded as an indication of her final assessment and recommendation.

40. The guardian opposed the parents' application. She took the view that a daytime assessment of parenting ability which the local authority had undertaken by observing and supervising the mother's and PH's contact with SA, had demonstrated that with a great deal of support and in a secure stable environment the mother and PH could safely parent SA.

41. In commenting on Dr Drayton's report, the guardian observed that at a professionals' meeting on 3 November 2006, Dr. Drayton, when asked whether he would recommend any child being in the care of the mother and PH in the community, he had replied: "currently, not in a million years. It would have to be in a residential setting and closely monitored". The guardian's report continued: -

The viability assessment undertaken by (the FRU) highlights serious concerns and indicates that a very high level of monitoring would be necessary they report the minimisation of the difficulties both adults made of their previous difficulties. These concerns were highlighted at the Child Protection Case Conference I attended on 21 December 2006 in relation to – as then unborn – M. (The mother) – supported by PH denied any responsibility for the neglect that SA had experienced or for the care given to her previous children – blaming previous partners. It was reported to the Conference, via the Probation Service that the couple had invited two friends for Christmas dinner who were both serious sexual offenders both currently on licence and one of whom is subject to a Sexual Offenders Prevention Order. The couple know the nature of t he offences.

The concern about (the mother) and PH are more widespread than their practical parenting ability and I do not think that an assessment by (the FRU) would provide the court with any new information. Therefore I would not support his application.

42. The matters raised in the final two sentences of the first of the two paragraphs cited from the guardian's report were not the subject of findings by the judge and are, as I understand it, in issue. Plainly, if established, they are matters of concern, but I do not regard them as in any sense determinative – or even directly material to – the issues raised by these appeals.

The professionals' meeting
43. However, as the remark made by Dr. Drayton at the professionals' meeting was relied upon by the local authority and the guardian, I need to deal with it. We were shown a note of the meeting. For ease of reference, I will identify the speakers in the extract from it which follows. PF is PL's solicitor; DD is Dr Drayton; JG is the solicitor instructed by the guardian; PM is the local authority social worker and author of the core assessment; and CR is the guardian. The most relevant passage from the meeting seems to me to be the following: -

PF Would you recommend any child being in their care in the community?
DD Currently, not in a million years. It would have to be in a residential setting and closely monitored.
PF Would SA go home before the new baby?
RR No, they need to be put in a position of reasonable stress and if they can get through that it would be fairly encouraging.
JG The question is: do you want children in that situation?
DD I think she has to have that chance if there is to be a reasonable chance of success.
PM It's a tough balancing act.
JG It's very finely balanced about the recommendation.
DD There is a reasonable change (sic) of success. They do co-operate well they do have the cognitive ability and PH probably has the emotional resources as well but (the mother) is very much more fragile.
CR Could (the mother) do it alone?
DD No.

44. I have to say that I do not put the construction on this passage which both the local authority and the guardian seek to give it. Given that it is a note, and not a transcript, and reading "chance" for "change" in Dr. Drayton's penultimate response, I think what he is saying is reasonably clear. "Currently" (that is as things stand at the moment) he could not possibly recommend any child being in the parents' care in the community. That is plainly right. The only way that situation could even be contemplated is through the residential assessment which Dr. Drayton favoured. There was a reasonable prospect that the residential assessment would be successful. The mother had to have that opportunity if there was to be a reasonable chance of her parenting her children in the longer term. In other words, the parenting assessment was a necessary prerequisite to any consideration of her caring for the children in the community.

45. I do not think that Dr Drayton is saying anything different in the professionals' meeting from that which he was saying in his report. Furthermore, his statement that the mother could not care on her own is highly significant. She can only care for her children if her relationship with PH endures and is successful. That consideration, as it seems to me, makes the residential assessment, and PH's participation in it, all the more important.

The judgment
46. For present purposes, the critical passages from the judge's judgment relate to his analysis of the law and its application to the facts of the case. Unusually, the judge deals with the law at the end of his judgment, after he had reviewed the evidence and made a number of findings. That, however, would not of itself be a cause for complaint, provided that the judge's analysis of the law was sound. This is what the judge said:-

58 In my judgement the evidence is clear that the real nature and purpose of the residential assessment at (the FRU) would be an assessment of the parent/s, and therapy or a programme of work to improve the skills of the parents. That is, in consequence of the decision in re: G outside the scope of that which it is permissible to order under s38 (6).

59 As was said in the case of re: G by Lord Scott to come within s38 (6) "the proposed assessment must be an assessment of the child" ([7] page 608).

60 Furthermore at paragraph [71] Baroness Hale said "In many cases, the Local Authority should be able to make its own core assessment and the child's Guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the Local Authority nor the Guardian is able to bring".

61 In my judgment this is just such a case. There has been a long history and long involvement of Social Services with the mother and her children. There are serious concerns raised about the nature and quality of PH's past relationships. There are serious concerns about the long-term prognosis and viability of the relationship between (the mother) and PH, and which must be seen in the context of their respective histories so far as past relationships are concerned. The essential nature of the assessment sought by the parents and supported by Dr Drayton would be to test and assess the future strength of the relationship between (the mother) and PH. Whilst of course that would undoubtedly have an impact upon SA and / M, the essential purpose and focus of any such assessment at (the FRU) would be on the parents and their relationship.

62 In my judgment in the light of the authorities such an assessment is outside the scope of s38 (6).

63 Re: C decided that s38 (6) and (7) of the Act are to be broadly construed. Those sections confer jurisdiction on the Court to order or prohibit an 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 my judgment such further information is not required in this case.

64 I have given careful consideration to the Human Rights Act 1998 and the European Convention on Human Rights. Undoubtedly the actions of the Local Authority have an adverse impact upon the parents' and the children's rights to respect for their private and family life and their home. As however was stated in re: G the proposition that the refusal of the court to make a direction for s 38 (6) assessment cannot be accepted as constituting a breach of the child's or parents' Article 8 rights ([24] page 611-612).

In my judgment, these passage display a number of errors which I will address in detail later in this judgment.

The argument for the parents in this court
47. For the mother, Ms Kay Firth-Butterfield had prepared a detailed skeleton argument. At our invitation, however, she concentrated her attack on what she submitted was the judge's misunderstanding of the FRU assessment. He appeared to take the view that the assessment was of the parents and/or amounted to therapy and was thus outlawed by the decision of the House of Lords in Re G. That, Ms. Firth-Butterfield submitted, was plainly wrong. On a proper construction of the cases, the judge should have held that the assessment fell within the parameters identified in Re C.

48. For PH, Ms Charlotte Pitts supported the arguments of Ms Firth-Butterfield and sought to persuade us in addition that the judge had been wrong to make findings against PH in relation to domestic violence towards his three previous partners, all of whom had made statements, but none of whom had given oral evidence to the judge. I was unpersuaded by this argument. The judge had the statements. He was plainly unimpressed by PH's denials. As a matter of discretion, I am not persuaded that he was obliged either to take no cognisance of the statements or to make no findings against PH. What he had before him was the well known phenomenon of the abuser minimising and excusing abuse. If PH is truly genuine in his desire to be a good parent to M, he must take good heed of everything Dr Drayton says about him –particularly his need for CBT (see paragraph 4.44 of Dr. Drayton's report set out at paragraph 31 above).

49. However, I do not regard this point as in any way determinative of these appeals, and thus do not see the need to address it further.

The case for the local authority in this court
50. The case for the local authority was advanced with great skill by Miss Caroline Budden, who had not appeared before the judge, was instructed late, but had nonetheless produced a first class skeleton argument. Her first broad submission was that this was a carefully considered judgment given after a full hearing of the s 38(6) application. The judge had heard oral evidence. He had accepted the submissions made on behalf of the local authority and followed the recommendation of the Guardian. It could not therefore be said, she argued, that the exercise of his discretion 'exceeds the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong' :- see G v G 1985 1 WLR 647.

51. Miss Budden argued secondly that the application had to be considered against the factual background to the present proceedings which included extensive involvement of social services in relation to the mother's past relationships and her ability to care for her children. Miss Budden invited us to consider the background as set out in detail in the social work chronologies filed in the care proceedings bundle.

52. As far as PH was concerned, he had three children by three previous relationships. He had also acted as a father figure to five other children, but had not maintained contact with any of these children. Furthermore, his three previous partners had made detailed allegations of domestic violence against him. Although he denied most of these allegations, he did acknowledge some incidents and conceded that his past relationships were 'stormy'. Furthermore, social work records and reports from the FRU dating back to 1991-2 relating to the time when PH was in a relationship with one of the three women confirmed that their relationship was volatile and at times violent.

53. Miss Budden argued that the relationship between the mother and PH had developed very shortly after the breakdown of the relationship between the mother and PL, and the removal of SA to foster care. The mother became pregnant with PH's child shortly thereafter. All of this demonstrated serious parental immaturity and irresponsibility and militated against an assessment under section 38(6).

54. Miss Budden argued, thirdly, that there were sufficient assessments already available to the court in relation to the care proceedings. There was the evidence of a family support worker who had supervised the mother's contact with SA after her removal from the care of the mother and PL on 23 February 2006 under a Police Protection Order. There was the daytime parenting assessment, which had commenced on 11 May 2006 and had included PH. There was a core assessment prepared by a local authority social worker, and Dr Drayton had conducted a detailed cognitive and psychological assessment of the mother, PL and PH. Finally, the guardian had filed a report in relation to this application. She would undertake her own assessment and file a final report prior to the conclusion of the proceedings. In short, Miss Budden submitted, the judge had ample material upon which to decide the case at the final hearing in July 2007. A residential parenting assessment was simply not required.

55. Miss Budden reminded us that the hearing had taken place over two days on 25 and 26 January 2007. The judge had heard evidence from the mother, PH, the social worker, Dr Drayton, the author of the FRU report and from the guardian. The judge had given a fully reasoned judgment on 29 January 2006.

56. Turning to the judgment, Miss Budden pointed out that the judge had carefully reviewed the evidence before the court and the positions of each of the parties. He had considered in particular the evidence of Dr Drayton. He had reached the following conclusions on the facts:-

(1) the court had sufficient evidence about the mother and PH's ability to parent in a supportive environment from the daytime parenting assessment;
(2) the court did not require any further evidence of that nature;
(3) the main area of concern in the case was the relationship between the mother and PH;
(4) the real focus of the proposed assessment was the nature and stability of the relationship between the mother and PH;
(5) Dr Drayton's recommendation included a recommendation for therapeutic input for both parents;
(6) the prognosis for the future of the relationship between the mother and PH was uncertain.

57. Miss Budden submitted that each of these conclusions was soundly based on the extensive evidence that was before the court. She added that the judge properly directed himself in relation to the law applicable in this case. He had been entitled to conclude that an assessment which had as its prime focus the relationship between the parents was outside of the scope of s 38(6) following the decision of the House of Lords in Re G.

58. In the alternative, Miss Budden argued that if this court were to conclude that the focus of the proposed assessment was wider than an assessment of the relationship between the parents and included a parenting assessment then the learned judge was entitled to consider the parts of the assessment separately and to conclude; (1) that further assessment of practical parenting skills was not necessary; and (2) that the assessment of the relationship between the parents fell outside s 38(6).

59. Miss Budden submitted that on the substantial volume of evidence available to the court, the prognosis for the outcome of the proposed assessment was very poor. This was particularly the case as Dr Drayton was of the view that the mother could not parent without the support of PH.

60. Lastly, on the question of delay, Miss Budden pointed out that the final hearing was listed on 5 July 2007 with a time estimate of 5 days. On 5 July 2007 SA will be 18 months old and M will be 6 months old. It would be contrary to their best interests for any further assessment to be ordered which would lead to the final hearing being adjourned to a later date.

61. Miss Budden invited us, accordingly, to dismiss the appeal.

The case for the guardian
62. The guardian maintained her support for the local authority's position I hope Ms Duthie will not think me discourteous if I take the view that her submissions, whilst helpful, did not take the case to any point higher than that to which Miss Budden had been able to advance it.

The statutory provisions
63. Section 38 of the Act deals with interim orders. For current purposes, the relevant sub-sections are the following: -

(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7) A direction under subsection (6) may be to the effect that there is to be—
(a) no such examination or assessment; or
(b) no such examination or assessment unless the court directs otherwise.
(8) A direction under subsection (6) may be—
(a) given when the interim order is made or at any time while it is in force; and
(b) varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.

The authorities
64. The two leadings cases on section 38(6) are, undoubtedly, the two decision of the House of Lords in In re C (A Minor)(Interim Care Order: Residential Assessment) [1997] AC 489, and In re G (A Minor) (Interim Care Order: Residential Assessment) [2006] 1 AC 576. I will, henceforth, revert to calling them Re C and Re G respectively. It will, I think be necessary to examine these two cases in some detail.

65. In Re C, the child in question has suffered severe injuries at the age of four months, and was the subject of an interim care order in favour of the local authority. There was a dispute within the local authority itself. The social workers dealing with the case took the view that there should be an in-depth assessment of the child and his parents at a residential unit. The question for the court was whether or not a direction should be made under section 38(6) of the Act to enable that assessment to take place. The judge made the order: this court reversed her: the House of Lords restored the judge's decision.

66. The House of Lords had to choose between two possible constructions of section 38(6). The first, adopted by this court in In re M (Minors) (Interim Care Order: Directions) [1996] 3 FCR 137 (and followed by this court when Re C was before it) was identified as the "narrow" construction. On this construction, as Lord Browne-Wilkinson described it ([1997] AC 489 at 501B), the phrase, "other assessment of the child" in section 38(6) had to be construed as ejusdem generis with the words "medical or psychiatric examination". In other words, the sub-section empowered the court only to give directions in relation to examinations or assessments of the child: it did not empower the court to give directions in relation to examinations or assessments of the mother or the family as a whole.

67. The House of Lords emphatically rejected the narrow construction. As Lord Browne-Wilkinson (who gave the leading speech) put it:-

My Lords, I cannot accept this narrow construction of the subsection. The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. As I have sought to demonstrate, the dividing line between the functions of the court on the one hand and the local authority on the other is that a child in interim care is subject to control of the local authority, the court having no power to interfere with the local authority's decisions save in specified cases. The cases where, despite that overall control, the court is to have power to intervene are set out, inter alia, in subs (6) and (7). The purpose of subs (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 preempt the court's judicial decision.

This broad approach is supported by consideration of subs (7) which does not appear to have been drawn to the attention of the Court of Appeal either in Re M (above) or in the present case. Subsection (7) confers on the court the power to prohibit an examination or assessment which the local authority is proposing to make. It is manifestly directed to the type of conduct by social services revealed by the Cleveland Inquiry (Report of the Inquiry into Child Abuse in Cleveland in 1987 (1988) Cm 412), ie repeated interviews and assessments of the child and his parents which are detrimental to the child. This negative control by the court cannot have been intended to be limited to cases where the child, and only the child, is to be assessed. If it is to be fully effective to prevent damage to the child, the power under subs (7) must also extend to cases where it is proposed to assess the relationship between the parents and the child.

68. Having stated that he saw no reason for the application of the ejusdem generis rule, Lord Browne-Wilkinson continued:-

Next, it is true that subs (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 s 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 considering the relationship between the child and the parents? The court has no power to order the parents to take part in any assessment against their wishes, any more than, as the final words of subs (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 narrow construction were to be adopted the local authority could simply refuse to allow the child to take part in any assessment with his parents.

69. Lord Browne-Wilkinson thus concluded:-

In my judgment, therefore, subss (6) and (7) of s 38 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.

70. It is, I think, important to recall that nothing in Re G detracts from the construction of section 38(6) enunciated by the House of Lords in Re C. To the contrary, several passages in the speeches of Lord Scott of Foscote and Baroness Hale of Richmond, in my judgment, reinforce the construction given to section 38(6) of the Act in the earlier case. Most striking, I think, is Lord Scott's citation of, and agreement with a passage from the judgment of Holman J in In re M (Residential Assessment Directions) [1998] 2 FLR 371 at 381 (Re M):

[10] In Re M, Holman J, after referring to Lord Browne-Wilkinson's conclusions in Re C, said this:

'it does seem to me that both the words of the section and the language of Lord Browne-Wilkinson nevertheless impose some limits on the extent of the court's powers. They are limited to a process that can properly be characterised as assessment rather than treatment, although no doubt all treatment is accompanied by a continuing process of assessment. And they are limited to a process which bona fide involves the participation of the child as an integral part of what is being assessed.'

I agree with the learned judge's analysis.

71. Other passages in the speeches are to like effect. I will give only three further examples. The first is from paragraph 8 of Lord Scott's speech ([2006] 1 AC 576 at 582H, in which he is, once again, discussing Lord Browne-Wilkinson's speech in Re C:-

It is important, however, to bear in mind that Re C was a case in which a very young child had sustained serious injuries while in the care of his parents, injuries that the parents were unable satisfactorily to explain. The issue was whether an assessment of the child and his parents at a residential unit could be directed under s 38(6). The manner in which the respective parents behaved toward the child, particularly in stressful situations, was to be the subject of the proposed in-depth assessment. The focus of the assessment was the parents' behaviour towards the child and Lord Browne-Wilkinson's dicta should be read with that in mind. He cannot be taken to have intended that a direction for an examination or assessment could be made under s 38(6) whenever any information about a parent useful to the court in deciding whether or not to make a final care order could or might thereby be obtained.

72. My final citations are from the speech of Baroness Hale of Richmond. At paragraph 66, she says:-

I appreciate, of course, that it is not always possible to draw a hard and fast line between information-gathering and service-providing. Some information can only be gathered through the provision of services. It may be necessary to observe the parents looking after the child at close quarters for a short period in order to assess the quality of the child's attachment to the parents, the degree to which the parents have bonded with the child, the current parenting skills of the parents, and their capacity to learn and develop. That is the sort of assessment which was involved in Re C

73. Finally, in her conclusion in paragraph 69 of her speech, Baroness Hale says:-

[69] In short, what is directed under s 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves. In this case, the judge was clearly entitled to reach the conclusion that any further in-patient treatment in the Cassel had gone beyond what fell within his power to order under s 38(6). I would allow this appeal.

74. Speaking for myself, I am in no doubt at all that the instant case falls within the ambiance of Re C, and is readily distinguishable from Re G. As Thorpe LJ pointed out during the course of argument, the question for the House of Lords in the latter case was aptly stated by Baroness Hale of Richmond in paragraph 36 of her speech:-

[36] The legal issue before us is at first sight a comparatively simple one. In what circumstances may a court direct a local social services authority to pay for a family's admission to the Cassel hospital under s 38(6) of the Children Act 1989?

75. Re G clearly decides that since the main purpose of the admission of the family in question to the Cassel was to provide therapy or treatment, it could not be brought within section 38(6) of the Act. In my judgment, whilst Re G plainly identifies an admission which is outwith section 38(6) it does not affect the construction of the statute laid down by the House in Re C, nor does it affect the use of section 38(6) for an assessment which, in the helpful and apposite words of Holman J, "bona fide involves the participation of the child as an integral part of what is being assessed".

76. In my judgment, therefore, the present case is on all fours with Re C.

The judge's approach to the law
77. I have already set out the judge's analysis of the law in paragraph 46 of his judgment. The judge correctly identifies Re C and Re G as the two critical cases. However, in the passages which follow, in my judgment, the judge falls into error in a number of respects.

78. Firstly, the judge is plainly wrong in paragraph 58 to characterise the assessment at the FRU as "an assessment of the parent/s, and therapy or a programme or work to improve the skills of the parents". I have set out the terms of the FRU's assessment in paragraph 35 above. There is nothing about "therapy" in its conclusions. In my judgment, the judge has misread Dr. Drayton's report. The therapy to which Dr. Drayton refers, and which I have set out in paragraph 31 above is, as Thorpe LJ aptly observed during argument a "bolt-on" to be provided, as Dr. Drayton states, firstly in the form of cognitive behaviour therapy (CBT) for PH by means of a reference through his general practitioner to; and, secondly - for the couple - through RELATE.

79. This, in my view, is a serious error since it leads the judge directly to the conclusion in the same paragraph that the FRU assessment is "as a consequence of the decision in Re G outside the scope of that which it is permissible to order under section 38(6)". In my judgment, this is simply wrong. The judge has misunderstood and thus misrepresented the nature of the assessment, and has wrongly concluded that he does not have jurisdiction to order it. This alone, in my judgment, is sufficient to vitiate his conclusion.

80. The same misunderstanding permeates the rest of his reasoning. His citation of paragraph 71 of Baroness Hale's speech is, in my judgment, inapt. The court had instructed Dr. Drayton to make psychological assessments of the parents, and specifically to advise on whether or not a residential assessment would be appropriate - see Dr. Drayton's instructions as recorded in paragraph 16 above. Dr. Drayton's clear opinion was that a residential assessment of the parents was necessary for two principal reasons. The first was "to give professionals involved in the case important information on how well (the mother) manages the practicalities of parenting". That, plainly, is fair and square within Re C. The second, which Dr Drayton regarded as more important, was that it would give the same professionals and the court "important, if not vital information on how (the parents') relationship bears up under stress". What was the stress? Manifestly, it was having to care full time for a child in a very structured and overseen environment.

81. In my judgment, such an assessment is not only fair and square within Re C, but goes to the heart of the critical question in the case, which is whether or not M can be safely parented by his mother and father. No question, it seems to me, is more central than this to the issue of M's welfare. To characterise its "essential nature", as the judge does, as being "to test and assess the future strength of the relationship between (the parents)" is seriously to miss the point.

The principles underlying the Act
82. There is, however, a further, and in my judgment equally important point, which goes to the root of family justice. In In re K.D. (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at 812 (a case decided more than a decade before the importation into English law of ECHR) Lord Templeman famously compared ECHR Article 8 with the position in England and Wales under the common law and statute. His words have resonated throughout the Family Justice System ever since, and, in my judgment, underlie the philosophy of the Act. I propose to recite the whole passage, highlighting the particular sentences which, as it seems to me, are directly applicable to these proceedings. Lord Templeman said:-

The English rule was evolved against an historical background of conflict between parents over the upbringing of their children. The Convention rule was evolved against an historical background of claims by the state to control the private lives of individuals. Since the last war interference by public authorities with families for the protection of children has greatly increased in this country. In my opinion there is no inconsistency of principle or application between the English rule and the Convention rule. The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation. In terms of the English rule the court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which could be caused by the resumption of parental care after separation has broken the parental tie. In terms of the Convention rule the court decides whether and to what extent the child's health or morals require protection from the parent and whether and to what extent the family life of parent and child has been supplanted by some other relationship which has become the essential family life for the child

83. Miss Budden readily agreed in argument that the underlying philosophy of the Act was, wherever possible, to enable children to be brought up by their parents or within their natural families. That is the right of every child. But children also have, of course, the right not be caused (or subjected to the likelihood of) significant harm. This inevitably means that in some cases, local authorities will have to move swiftly to protect children from significant harm which their parents have inflicted or are likely to inflict on them. In some cases, that may mean seeking judicial approval to remove children from their mothers immediately after birth.

84. The relevance of these observations to the point under discussion in the instant case seems to me to be that before taking the step to remove children permanently from their natural families and placing them for adoption with strangers, the court has to be satisfied (applying the criteria set out in Part IV of the Act) that the threshold criteria for a care order are met, and that care orders with care plans for adoption are in the best interests of the children concerned. That, of course, requires the court anxiously to scrutinise the local authority's care plan. So much is elementary and well established. But what is equally important, in my judgment, is that the court should be astute to ensure that the case has been fully investigated, and that all the relevant evidence necessary for the decision is in place.

85. I am not for one moment seeking to lay down any general guidelines for the circumstances in which the court should or should not order assessments under section 38(6). The courts must give the sub-section a purposive construction and apply the principles set out in Re C and Re G to the facts of the cases before them. But what is equally important is that the hearing of the proceedings should be fair (or, to put the matter in the language of ECHR, Article 6 compliant) and that the court should have before it all the relevant evidence necessary for the decision.

86. I am left with the clear feeling, having listened to the argument in the instant case, that any final hearing which followed a denial to the parents of M the opportunity to take part in a residential assessment of the child would be unfair. I say that for a number of reasons. Firstly, the parents have plainly been written off by the local authority as carers for either child. I have cited the relevant passage from the core assessment in paragraph 37 above. Although the guardian is at pains to say that her evidence on the section 38(6) issue is not determinative of her final investigation, the clear impression left by her evidence is that the parents are unlikely to be able to care for either M or SA. Both the local authority and the guardian say that the judge does not need the evidence from a section 38(6) assessment. Both say – in effect – that although this mother has done everything expected of her in contact, her history is such that there is no point in any further assessment. The plain inference is that she is incapable for caring for M and SA: that is the end of the matter, and the court should therefore not permit any further expenditure of public funds on a further assessment.

87. There will, in my judgment, of course, be cases in which to order an assessment under section 38(6) of the Act will be a waste of time and of public funds. Sadly, it is not difficult to provide examples. Parents who have been found grievously to have injured one or more of their children and have another whilst continuing to deny causing the injuries or without any acknowledgement of their responsibility for the injuries can hardly expect to obtain an assessment of their new child under section 38(6). A woman who has a child or children by a convicted paedophile whom she does not acknowledge to be a danger of her children is in the same position. Child protection is a vital ingredient in any proceedings under the Act.

88. Accordingly, if the professional evidence in the instant case was unanimous that a section 38(6) assessment would serve no purpose, it would be unlikely that the judge could have been criticised for refusing to order one. But that is patently not the case. The consultant clinical psychologist brought in to advise the court (inter alia) on this very issue advises, in strong terms, that a residential assessment of M, the mother and the father is not merely desirable: he strongly recommends it. In my judgment, that is a powerful pointer to the propriety of such an order.

89. That pointer is, in my judgment however immeasurably strengthened when viewed against the fact that, if it is not ordered, the parents will be forced to go into the final hearing without an important piece of evidence, and without having been given the opportunity to demonstrate that, despite their respective histories, they have the capacity to parent M. Indeed, it seems to me that without positive evidence from such an assessment, the outcome of the July hearing is a foregone conclusion.

90. None of this, of course, is intended as a criticism of either the local authority or the guardian for forming a clear view. Indeed, they may prove in due course to be correct. It may be that the parents will prove unable to sustain their relationship for the period of the assessment, or otherwise demonstrate during it that they do not have the capacity to parent M, let alone M and SA together. As I stated in argument, if the parents fail in the assessment, that is likely to be the end of the case as far as they are concerned.

91. In my judgment, however, none of these considerations provides a good reason, on the facts of this case, for the assessment of the child under section 38(6) not to take place. As I see the case, it is manifestly in the interests of M to see if his parents are able to care for him, and it is the responsibility of the court to ensure that it has the best evidence on which to reach a conclusion about his welfare. It is also procedurally fair for his parents to be given the opportunity to demonstrate that they can overcome their manifest difficulties and care for him, and it would, in my judgment, be unfair were they to be denied that opportunity. There was powerful, well reasoned, objective and balanced evidence from Dr. Drayton that such an assessment was worthwhile. The judge's misreading of the authorities deprived him of the ability to give Dr. Drayton's evidence the weight it warranted.

92. Miss Budden argued the case for the local authority as well as it could be argued. But in my judgment, her argument fails on her analysis of Re C and Re G. Speaking for myself, I do not think it permissible to support the judge by artificially dividing up the assessment, as Miss Budden does, into an unnecessary further assessment of practical parenting skills on the one hand, and an assessment of the parental relationship outwith section 38(6) on the other. In my judgment, the assessment proposed by Dr. Drayton and the FRU is a residential assessment designed to address the critical issue in the case (can M be safely reunited with his parents in the community?) and, as I have already said, is an assessment which, in Holman J's words, "bona fide involves the participation of the child as an integral part of what is being assessed".

93. For all these reasons, the order made by the judge cannot, in my judgment, stand and must be set aside. He has made a serious error of law which plainly vitiates his exercise of discretion. We are entitled to exercise our discretion afresh, and I would do so by ordering the assessment under section 38(6) of the Act which the judge refused. I would allow the appeals accordingly.

94. In the final sentence of paragraph 40 of his judgment, the judge said:

Furthermore, any such assessment would of necessity give rise to considerable and in my judgment unacceptable delay. Such delay would in the context of this case not be purposeful.

95. We were told at the bar that the case against the section 38(6) assessment had not been argued before the judge on the basis that it would cause delay, for the obvious reason that had the judge made the order on 29 January 2007, an immediate place at the FRU was available and the assessment would have been completed in three months, well in advance of the fixture for the final hearing on 5 July 2007. The point was thus one taken by the judge of his own motion, and in taking it into account he was, in my judgment, plainly wrong. Miss Budden, for the local authority, with characteristic candour, accepted that she could not support the judge's reasoning on this point.

96. All that said, this court must not, I think, lose sight of the passage of time. The place at the FRU has, inevitably, been given to others. There is some doubt about when the assessment can now start. It is, moreover, easy to overlook the fact that this case is as much about SA as it is about M. SA will be aged 18 months when the final hearing in July takes place and, as I have already stated, it is very important that, if at all possible, a decision about her placement should not be delayed beyond that hearing. The fixture for 5 July must, accordingly, stand, and every effort must be made to ensure that the assessment under section 38(6) has been concluded in time for evidence in relation to it to be available for the final hearing.

97. This court is, of course, only seized of one issue, and it is not for us to take decisions about the future of the proceedings which are the province of the judge at first instance. He or she will, of course, give whatever case management directions are required, and will make both the interim and final decisions which the case demands on their merits as and when they arise. Nothing in this judgment is designed in any way to fetter the judicial discretion to make further decisions on the ground. I simply make the point that time is of the essence as far as these two children are concerned, and although the judge was wrong, on the evidence before him, to introduce the factor of delay, this does not mean that section 1(2) of the Act has ceased to apply. To the contrary, it now assumes a greater importance, and I emphasise that this judgment is predicated on the preservation of the final hearing in July. That hearing should only be vacated if there are powerful reasons for doing so.

Lord Justice Thorpe
98. I agree that this appeal must be allowed for the reasons and with the consequences expressed by my Lord.