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Home > Judgments > 2009 archive

A (A Child), Re [2009] EWHC 865 (Fam)

Appeal by local authority against an order in care proceedings where was alleged that the FPC had interfered with the local authority’s decision making in relation to parental responsibility. Appeal dismissed.

In care proceedings it had become clear that the parents would be able to care for child and so the paternal great grandmother applied for a residence order. In the magistrates’ court the justices accepted the guardian’s arguments that before making a final order there would need to be an assessment of how the child settles in with the great grandmother and that the local authority should retain parental responsibility during that time. In this appeal, the local authority argued broadly that the Justices were wrong to deal with the matter at very short notice and should have granted an adjournment; ii) that the order made by the magistrates were wrong in law on the principle and the facts and iii) the reasons given by the magistrates were inadequate.

Munby J reviews the law relating to these issues and concludes that i) that the magistrates had been entitled to reject an adjournment as there were time pressures; furthermore the local authority suffered no injustice; ii) on the most important point he makes the point that s38(6) can refer to any assessment and not just the more familiar residential assessment and that the magistrates decision fell comfortably within the parameter of what was permissible. He rejects the submission that the order left the child in a legal no man’s land as the placement was within a defined and regulated framework. The order also supported the views of an experienced guardian; iii) the reasons given, though brief, were adequate. Also, asked whether the matter should have been transferred to the county court, Munby J answered emphatically no.

____________

Neutral Citation Number: [2009] EWHC 865 (Fam)
Case No: CF094/2008A
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CARDIFF DISTRICT REGISTRY
ON APPEAL FROM CARDIFF FAMILY PROCEEDINGS COURT
(FPC.3348.08.13)

The Civil Justice Centre
2 Park Street
Cardiff  CF10 1ET

Date: 20 April 2009

Before :

MR JUSTICE MUNBY
- - - - - - - - - - - - - - - - - - - - -
In the matter of A (a child)
And in the matter of the Children Act 1989

Between :

THE CITY AND COUNTY OF CARDIFF (Appellant)

- and - 

(1) K
(2) S
(3) C
(4) S
(5) A (by her children’s guardian)  

(Respondents)

- - - - - - - - - - - - - - - - - - - - -
Ms Ruth Henke QC and Ms Sian Parry (instructed by Cardiff County Council, Legal Services) for the Appellant (local authority)
Ms Lisa Thomas (instructed by Nicol Denvir & Purnell) for the First Respondent (mother)
Mr Gareth Jonathan-Jones (instructed by Colin Jones) for the Third Respondent (paternal great-grandmother)
Mr Graeme Skuse (of Spencer Skuse) for the Fourth Respondent (paternal aunt)
Mr Mark Powell QC (instructed by Lindsay Ford) for the Fifth Respondent (child)
The Second Respondent (father) was present but not represented

Hearing date: 6 February 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
 

 
MR JUSTICE MUNBY

This judgment was handed down in private on 20 April 2009 but the judge hereby (on 5 May 2009) gives leave for it to be published in this form

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of the family must be strictly preserved


Mr Justice Munby:
1. It is a cardinal principle of the Children Act 1989 (the 1989 Act) that once a care order has been made, whether interim or final, it is for the local authority, and not the court, to decide how to meet its parental responsibilities for the child. The decision-making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court.

2. Ms Ruth Henke QC on behalf of the local authority, the City and County of Cardiff, submits that the Cardiff Family Proceedings Court fell into error and offended against this principle when it made the order on 16 December 2008 which is the subject of this appeal. Those who are concerned to uphold the decision of the Justices dispute this contention; they assert that the Justices acted lawfully and in accordance with principle and that their decision is not to be impeached.

3. I agree with the respondents. It follows that this appeal must be dismissed.

4. The points which have been argued before me are of some importance, which is why I reserved judgment.

The factual background
5. The Justices were concerned with a little girl, A, who was born in October 2007. A fortnight after her birth she was accommodated by the local authority under section 20 of the 1989 Act and placed with foster carers. The local authority commenced care proceedings on 23 January 2008. An interim care order was made on 30 January 2008 and was renewed throughout the period with which I am concerned.

6. It became apparent that neither the First Respondent nor the Second Respondent, her mother and father, were going to be able to give A adequate care (in due course threshold was agreed on 17 November 2008). On 18 September 2008 the Third Respondent, C, who is A’s paternal great-grandmother, applied for leave to apply for a residence order. On 6 October 2008, she and the Fourth Respondent, S, A’s paternal aunt, were joined as parties. On 17 October 2008 there was a positive viability assessment of them. On 5 November 2008 they were granted leave to apply for special guardianship orders. On 6 November 2008 the local authority filed a care plan (updated on 5 December 2008) which contemplated a plan for special guardianship to them with a contingency plan for adoption. On 8 December 2008 a special guardianship report supported them as special guardians for A.

7. Thus the state of affairs when the Justices sat on 16 December 2008. The mother and the father had effectively been ruled out as carers for A. And the guardian was firmly of the view that the local authority’s plan for special guardianship was appropriate. The paternal great-grandmother and aunt had been having contact with A for four hours a week. By 16 December 2008 it was common ground between the local authority and the guardian that A should be placed with them. And, as Mr Jonathan-Jones put it, the family wanted A moved to a family placement – to the paternal great-grandmother and aunt – as soon as humanly possible and before Christmas if at all possible.

The hearing before the Justices
8. Against this background there was, nonetheless, a difference of view before the Justices as to how this placement should be structured in the interim before a final order could be made.

9. The paternal great-grandmother and aunt had canvassed with the local authority the possibility of a placement with them in accordance with regulation 38(2) of the Fostering Services (Wales) Regulations 2003, that is, a family placement. But the local authority would not agree, seeking an interim residence order, coupled with an interim supervision order. Apparently the aunt has a conviction which the local authority felt would probably disqualify her under the Regulations though not in its view otherwise being relevant to her capacity to care for A. The guardian was concerned that the volatile nature of the parents necessitated that some form of protective measures remain in place whilst the suitability of special guardianship was investigated, and therefore argued that the local authority should retain parental responsibility so as to be able to step in urgently if the need should arise. There were particular concerns about the reaction of the parents during contact and as to how the paternal great-grandmother and aunt would handle that.

10. Once the local authority had rejected the idea of a regulation 38(2) placement, the paternal great-grandmother and aunt aligned themselves with the guardian. They wanted A to be placed with them as soon as possible but could also see the importance of the local authority continuing to share parental responsibility pending the making of a final order. They were also concerned that if A was moved to them under the aegis of a residence order they might be left without the support they felt they needed, particularly in the early days of the placement. The mother also aligned herself with the guardian, agreeing with the guardian’s view that the placement needed a testing period before a final order was made and seeking the local authority’s continuing involvement, not least to provide assistance to the parties with the issue of contact. The local authority, although agreeing, as Ms Henke puts it, that the social worker should assess the placement prior to the final hearing, differed from the guardian as to the propriety of the order under section 38(6) of the 1989 Act which the guardian was seeking.

11. The dispute between the local authority and the guardian (supported broadly by the other parties) was aired before the Justices. The guardian submitted that the Justices should continue the interim care order and exercise their powers under section 38(6) and direct the local authority to place A with the paternal great-grandmother and aunt for the purpose of the local authority carrying out an assessment, both as to how they (the paternal great-grandmother and aunt) and A would cope with A living with them and, in particular, as to their ability to cope with and supervise A’s contact with her mother and father (see on the latter point paragraph 2 of the order made by the Justices as set out in paragraph [14] below). As Mr Powell put it to me, both the local authority and the guardian needed the kind of re-assurance as to the ability of the paternal great-grandmother and aunt to cope which could only be obtained if A was placed with them and assessed, as it were, in situ.

12. The local authority sought an adjournment as it had had no prior notice of this application and its representative was without instructions and wished to have an opportunity to consider the relevant authorities. Some time was spent trying to find out whether the parties could reassemble before Christmas, so as to give the local authority time to consider its position, but that proved not to be possible. The Justices agreed that time was of the essence for A, particularly given the forthcoming Christmas holiday, and took the view that a decision had to be made that day. No-one required any evidence to be called. The matter was dealt with on submissions, though apparently no authorities were referred to.
13. In the face, as Mr Powell puts it, of unity between the parties (with the exception of the local authority), the Justices made the orders sought by the guardian. They accepted the guardian’s view that the court, before making a final order, would require evidence of how A had settled in with the paternal great-grandmother and aunt, and that in the meantime the local authority should retain parental responsibility – something that could be achieved only by making a further interim care order.

The decision of the Justices
14. At the conclusion of the hearing the Justices made two orders. The first, in standard form, ordered that A be placed in the care of the local authority until 13 January 2009. The other, so far as material for present purposes, provided as follows:

“1  That A shall reside with [the paternal great-grandmother and aunt] for the purposes of assessment until 25th February 2009 and that the Local Authority shall file a report thereon on 20th February 2009.
2  During this assessment period, A shall have contact with her mother and her father as set out in the Care Plan of 5th December 2008, namely two sessions per week for one hour, each supervised by [the paternal great-grandmother and aunt].” 

A review hearing was fixed for 20 January 2009, the final hearing being provisionally fixed for 6 March 2009.

15. The Justices’ written reasons are short. I think that in the circumstances I should set them out in full:

“The Children’s Guardian requests a s38(6) direction for assessment of A in the home of the aunt and grandmother before the making of a formal Special Guardianship Order.
Opposed by the Local Authority who asked for an adjournment as the application had taken it by surprise and was without instruction to consent to the application.
And all other parties supported the application.
The court made the s38(6) direction for the following reason:-
The court requires evidence of how A settled in with aunt and grandmother before it will make a Special Guardianship Order.  Court agrees with Children’s Guardian that Local Authority should retain Parental Responsibility in the meantime.
Time is now of the essence for A and so the decision has to be made today.”

16. Three days later, on 19 December 2008, A moved to the home of the paternal great-grandmother and aunt. It is common ground that the placement has been a great success.

The notice of appeal
17. The local authority’s notice of appeal was filed on 29 December 2008. The notice of appeal was supported by grounds of appeal and a skeleton argument dated 22 December 2008 prepared by Ms Sian Parry on behalf of the local authority.

18. It is convenient to set out the grounds of appeal verbatim:

“1  The magistrates were wrong in law and fact in that they had no power or jurisdiction to make paragraph 1 of the order dated 16t December 2008. Section 38(6) of the Children Act 1989 the court does not confer jurisdiction on the court to order the local authority to place a child in an unregulated placement.
2  The magistrates failed to consider properly or at all the application made for a section 38(6) order. This is evidenced by:
(a) The magistrates initial failure to give any reasons for making the order;
(b) Failure to give any or any proper or appropriate reasons for making the order.
3  The magistrates failed to consider properly or at all the factual and/or legal basis which the child would be placed with the 3rd and 4th Respondents, and what status the placement would have.
4  The magistrates erred in their discretion in that they failed to take into account sufficiently or at all the fact that the 3rd and 4th Respondents would probably not pass the Fostering Service (Wales) Regulations 2003 and failed to consider the implications for the placement.
5  The magistrates erred in their discretion in refusing the application by the local authority for a short adjournment to consider the application made on behalf of the Guardian especially considering that no notice had been given of the application for the section 38(6) assessment.
6  The magistrates erred in law in failing to give any or any proper reasons for refusing the application to adjourn the application for a section 38(6) order.”

The hearing of the appeal
19. I arrived at Cardiff on 26 January 2009 on ‘standby’ duty to deal with a specific case. I was asked to confirm that I would be able to accommodate the appeal in my list. I agreed – not least because no other judge of the Division was due to sit at Cardiff for a while. Having examined the court file (which contained both the grounds of appeal and Ms Parry’s skeleton argument) I thought it appropriate to draw the parties’ attention to Re B (Interim Care Order: Directions) [2002] EWCA Civ 25, [2002] 1 FLR 545. This was done in an email sent by my Clerk on 27 January 2009.

20. The appeal came on for hearing before me on 6 February 2009. The local authority now had the benefit of representation by Ms Ruth Henke QC leading Ms Parry. The mother was represented by Ms Lisa Thomas, the paternal great-grandmother by Mr Gareth Jonathan-Jones, the paternal aunt by Mr Graeme Skuse and A by Mr Mark Powell QC. The father’s solicitors had written to the court on 5 February 2009 explaining why (as it seemed to me for good reasons) they were not proposing to attend.

21. In addition to Ms Parry’s original skeleton argument dated 22 December 2008 I had a supplemental skeleton argument from Ms Henke and Ms Parry, a position statement from Ms Thomas, a skeleton argument from Mr Jonathan-Jones and a skeleton argument from Mr Powell. Ms Thomas, Mr Jonathan-Jones and Mr Skuse made common cause with Mr Powell, who bore the brunt of the burden, in resisting Ms Henke’s attack.

22. At the end of the hearing I reserved judgment. I now (20 April 2009) hand down judgment.   

The legal framework
23. It is a ‘cardinal principle’ of the 1989 Act that, once a final care order has been made, it is for the local authority, and not the court, to decide how to meet its parental responsibilities for the child: see the speech of Baroness Hale of Richmond in Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 FLR 601, at para [44], referring to the speech of Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815.

24. The same principle applies in relation to interim care orders. As Lord Browne-Wilkinson said in Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1 at page 6:

“Under the interim care order the decision-making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court.” 

25. The existence of a care order does not, of course, prevent the court exercising it jurisdictions in judicial review or under the Human Rights Act 1998. But that apart, the court has no power to interfere with the local authority’s exercise of the parental responsibility conferred on it by section 33(3) of the 1989 Act except where the 1989 Act itself so provides, that is, in matters of contact (by virtue of section 34), or on an application under section 39 for the discharge of the care order, or, consistently with section 9(1), upon the making of a residence order (which has the effect, by virtue of section 91(1), of discharging any care order). In the case of an interim care order the court also has power to interfere with the local authority’s exercise of parental responsibility by virtue of section 38(6).

26. It is that power which is here in issue and it is accordingly to section 38(6) that I now turn. It provides as follows:

“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.”

Section 38(7) provides that:

“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.”

27. The dividing line between the local authority’s decision-making powers under an interim care order and the court’s powers under section 38(6) was delineated by Lord Browne-Wilkinson in Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1 at pages 6-7:

“the context in which s 38(6) has to be considered is this. The child is in the care of the local authority under an interim care order pending the decision by the court whether or not to make a final care order. Under the interim care order the decision-making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court. However, for the purpose of making its ultimate decision whether to grant a full care order, the court will need the help of social workers, doctors and others as to the child and his circumstances … Section 38(6) deals with the interaction between the powers of the local authority entitled to make decisions as to the child’s welfare in the interim and the needs of the court to have access to the relevant information and assessments so as to be able to make the ultimate decision.

… 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 s 38(6) and (7). The purpose of s 38(6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority’s application to take the child away from its parents by obtaining a care order. To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court’s judicial decision.”

28. He added at page 8:

“what the interests of justice require is … a power in the court to override the powers over the child which the local authority would otherwise enjoy under the interim care order.”

29. In Re C the House of Lords specifically rejected the proposition, asserted on behalf of the local authority in that case, that the court had no power under section 38(6) to specify the place at which the assessment was to take place. As Lord Browne-Wilkinson said at page 9:

“Mr Harris sought to develop the argument by saying that, if the court could order residential assessment at a specified place, that would override the duties of the local authority as to the placement of children within their care imposed under s 23(2). The conditions under which such placement can be made are further regulated by regulations made by the Secretary of State. I do not accept this submission. Section 23 and the regulations made thereunder are concerned with placements made by local authority with foster-parents and others: s 38 is not dealing with that issue at all. It is providing for the assessment of the child for the purpose of assisting the court in its assessment of the child’s best interests. An order specifying where and with whom that assessment is to take place is not ‘a placement’ within s 23 at all.”

30. Lord Browne-Wilkinson concluded with this observation at page 9:

“s 38(6) and (7) of the Act are to be broadly construed. They confer jurisdiction on the court to order or prohibit any assessment which involves the participation of the child and is directed to providing the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order.”

31. In Re B (Interim Care Order: Directions) [2002] EWCA Civ 25, [2002] 1 FLR 545, the Court of Appeal reiterated that the court’s powers under section 38(6) override the local authority’s management of the child in accordance with sections 33(1) and (3) of the 1989 Act. (The fact that the decision of the Court of Appeal in this case was subsequently questioned by the House of Lords in Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 FLR 601, at paras [12]-[13], on the ground that what was directed by the Court of Appeal was simply not an assessment within the meaning of the 1989 Act at all, does not invalidate the Court of Appeal’s analysis of the inter-relationship between the court and the local authority, the point with which I am here concerned.)

32. The remaining question, therefore, is, precisely what is it that the court has power to direct pursuant to section 38(6)? The answer to that question is provided by the decision of the House of Lords in Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 FLR 601. It is fundamental that, apart from a “medical or psychiatric examination”, all the court can authorise or direct under section 38(6) is something that can properly be described as an “assessment” and, moreover, an assessment “of the child”. Hence, the need for the primary focus to be on the child, and hence, also, the familiar distinction between an “assessment” of the child (which is permissible) and a programme of therapy or treatment for the parent (which is not).

33. Whether a particular programme involves permissible assessment, or some other thing which is impermissible, depends upon an evaluation of the ‘primary purpose’ of what is proposed and whether any otherwise impermissible elements are merely ‘ancillary’ to what is permissible: see the analysis of Thorpe LJ and Simon Brown LJ in Re D (Jurisdiction: Programme of Assessment or Therapy) [1999] 2 FLR 632, approved in Re G by Lord Scott of Foscote at para [11]. According to Thorpe LJ at page 637:

“a programme may be an assessment within s 38(6) even if there is an ingredient of ancillary therapy, but … a programme which is substantially therapeutic does not fall within s 38(6) even if it involves some element of assessment as it proceeds.”

The question, as Thorpe LJ put it at page 638, is: what is the “primary purpose” of the programme? Simon Brown LJ made essentially the same point at page 641:

“a programme for assessment, can encompass within it an element of therapy or treatment. If, however, the programme is essentially one for treatment rather than one for assessment it falls foul of the principle established by this court in Re B (Psychiatric Therapy for Parents) [1999] 1 FLR 701 and must be held to be outside the court’s powers to order. I recognise, of course, that that principle will not always be easy to apply. The antithesis between assessment on the one hand and therapy and treatment on the other is at best an imperfect one. Essentially, however, as Thorpe LJ has explained, the court will be concerned to determine what is the primary purpose of the programme proposed and whether the element of therapy treatment can properly be regarded as merely ancillary to it.”

34. Baroness Hale of Richmond expressed the same point more succinctly in Re G at para [69] when, having said that what is directed under section 38(6) must be an examination or assessment of the child, she added:

“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.”

35. Various descriptions were given by their Lordships in Re G of programmes that are within the proper ambit of section 38(6). Lord Scott of Foscote at para [7] used the following phrases to describe the permissible:

“be, or include, an assessment of the child with his or her parents, or otherwise in a family context”
“for the purpose of seeing whether or not [the child] and her mother had become satisfactorily bonded with one another”
“for the purpose of assessing her parents’ behaviour towards her.”

36. Lord Clyde at para [27] contemplated an assessment as extending to:

“the child in the context of his or her family, so that the investigation may extend to considering the capacity of a parent to care for the child.”

37. Baroness Hale of Richamond at paras [43], [66] and [89] variously described an assessment as: 

embracing “a joint assessment of the child and the parents, including the parents’ attitude and behaviour towards the child”
“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”
“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.”

38. I detect no difference of opinion or approach in these various formulations. They are merely different ways of describing the same essential thing.

The grounds of appeal
39. As will be seen from the notice of appeal, the local authority’s complaints fall under three broad headings. First, it is said that the Justices were wrong to deal with the matter at very short notice on 16 December 2008; they should, it is said, have granted an adjournment. Second, it is said that the order made by the Justices was erroneous in law and wrong both in principle and on the facts. Third, it is said that the reasons given by the Justices were inadequate. I shall deal with these three points in turn. 

The first ground of appeal: refusal of an adjournment
40. The Notice of Appeal complains (paragraph 5) that the Justices erred in the exercise of their discretion in refusing what is called a “short” adjournment, especially considering that no notice had been given of the application for a section 38(6) assessment.

41. I do not agree.

42. Perhaps in an ideal situation the Justices would have agreed to a short adjournment but the circumstances they were faced with were, as so often, not ideal. They took the view, and in my judgment, were entitled to take the view, that time was pressing for A – indeed, as they said, that time was of the essence for her – and that matters needed to be resolved before Christmas. So there were very powerful arguments in favour of pressing on. Nor do I think that any injustice was inflicted on the local authority by the refusal of an adjournment. After all, its main attack is based on the proposition that in making the section 38(6) order the Justices erred in law, indeed, acted without jurisdiction. Now that point is either good or it is bad. If it is good, then the local authority will succeed on that ground in any event, so this additional ground adds nothing; if bad, then the fact is that the refusal of the adjournment will have caused the local authority no harm.

43. Mr Jonathan-Jones puts the point succinctly. He accepts that the procedure adopted by the Justices is open to some criticism but that is not, in truth, he says, what this appeal is really about. The issue is as to the proper use of section 38(6) and the manner in which it was applied here by the Justices. I agree.

44. I reject the first ground of appeal

The second ground of appeal: decision erroneous in law and wrong in principle
45. The Notice of Appeal complains (paragraphs 1, 3 and 4) that the Justices erred in law in that they had no jurisdiction to make the order under section 38(6), because there is no jurisdiction to “place a child in an unregulated placement”; that they failed to consider properly the factual or legal basis of A’s placement with the paternal great-grandmother and aunt and what status the placement would have; and that they erred in the exercise of their discretion in that they failed sufficiently to take account of and consider the implications of the fact that the paternal great-grandmother and aunt would probably not pass the requirements of the Fostering Services (Wales) Regulations 2003.

46. Developing these complaints the following submissions were made by Ms Henke and Ms Parry, some, I detected, with more enthusiasm than others:

i) First, it was asserted that the Justices had no power – no jurisdiction – to make the order they did; in particular, so it was said, because section 38(6) does not confer any power to order that a child be placed, whether for the purpose of assessment or otherwise, in a particular placement. It was submitted that the court cannot direct the local authority where a child is to be placed, that being a matter for the discretion of the local authority once the care order (interim or final) has been made. Reliance for this proposition was placed on Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483. Section 38(6), it was submitted, does not allow the court to go behind the ‘green baize door’ and does not take away the statutory duties and powers of the local authority.
ii) Next, it was contended that if, contrary to those submissions, the court did have power to specify where a residential assessment was to take place, the only kind of place which could lawfully be specified was a ‘residential family centre’ registered and regulated in accordance with the Care Standards Act 2000 and (in Wales) the Residential Family Centres (Wales) Regulations 2003.
iii) Finally, it was said that the effect of the order the Justices made was to leave A in a legal ‘no man’s land’. Section 38(6), it was said, cannot and does not give the placement any status, and the only way in which this could be a ‘legal’ placement was if the paternal great-grandmother and aunt passed the requirements of the Fostering Services (Wales) Regulations 2003. Since they have not, two consequences are said to follow: first, that the placement with them is unregulated and ‘illegal’ and therefore inappropriate; second, that they do not qualify for the financial support which they would entitled to as approved foster carers (though as is conceded support could be given, as in fact it has, in accordance with section 17 of the 1989 Act).

47. By the time Ms Henke was on her feet in front of me the focus of the argument had turned to the second of these propositions. Ms Henke posed two questions:

i) Can and should section 38(6) be used, as here, to direct the local authority to place a child for the purposes of an assessment in a placement that is unregulated?
ii) Should section 38(6) be used, as according to Ms Henke it was used here, to circumvent the statutory regulations and allow a child to be placed in an unregulated placement? And if so, was it necessary to do so here?

48. Ms Henke very helpfully took me through the statutory schemes regulating local authority foster carers (the Children Act 1989, the Fostering Services (Wales) Regulations 2003 and the Placement of Children (Wales) Regulations 2007) and residential family centres (the Care Standards Act 2000 and the Residential Family Centres (Wales) Regulations 2003). Grateful though I am to her, there is no need for me here to follow her through the exercise. It suffices to record that, as is common ground, A’s placement with the paternal great-grandmother and aunt pursuant to the order the Justices made on 16 December 2008, was not one recognised or regulated by either of these statutory schemes.

49. Ms Henke recognises the difficulties presented to her argument by what Lord Browne-Wilkinson said in Re C but points out that the venue specified for the assessment in that case was, as she puts it, one subject to its own statutory scheme (now the Care Standards Act 2000); that it was thus fit for purpose, being regulated in relation to its staffing and the conduct of its activities; and that its relationship with the local authority was regulated, as was the local authority’s relationship with it. So, she says, their Lordships did not consider, nor were they asked to consider, the power of the court under section 38(6) to direct a child to reside at an unregulated location in the day to day care of unregulated persons who are themselves the subject of the assessment.

50. That is all true enough, but the question it might be thought is where, if anywhere, it takes Ms Henke. The truth, in my judgment, is that it takes her nowhere.

51. Addressing the first of the two questions she had posed, Ms Henke reiterates that the placement here was not a placement within section 23 of the 1989 Act and was thus unregulated, whether under that statutory scheme or, indeed, under any other statutory scheme. Thus, she says, there is no provision to regulate the fitness of the premises, the fitness of the persons providing A’s day to day care, or the relationship between the local authority and her carers. In short, A and her carers are left in ‘no man’s land’. That, she submits, cannot have been the legislative intent behind section 38(6). Given that the whole purpose of Part IV of the 1989 Act is to protect children from significant harm, or risk of such harm, section 38(6) cannot and should not be construed to permit a direction that a child be placed in an unregulated (and therefore potentially unsafe) location pending assessment. Such a construction would be so wide, she submits, as to go beyond the court’s powers under section 38(6) to override the views of the local authority. For the effect of such a direction would, in reality, be to remove from the local authority, or any other statutory body, the duty to assess and regulate the premises where children in care are placed.

52. Turning to the second question she had posed, Ms Henke made two further submissions. First, she said that the reality of the case was that everyone agreed A should live with the paternal great-grandmother and aunt whilst the guardian assessed their application for a special guardianship order and the social worker monitored her in their care and used that information to inform her continuing assessment of the paternal great-grandmother and aunt. There was therefore, she says, no need – to use Lord Browne-Wilkinson’s word in Re C, no necessity – to make a section 38(6) order at all. Second, and in any event, there was no need to make an interim care order; the section 38(6) order could have been linked with an interim supervision order and an interim residence order. An interim care order was inappropriate, she says, because it would bring into play the statutory regime under section 23, and unnecessary, because an interim supervision order was sufficient to secure A’s welfare. A’s contact with her parents could be regulated by a section 8 order and if her removal from the paternal great-grandmother and aunt turned out to be necessary it could be achieved, assuming the statutory tests to be satisfied, by an application either for an emergency protection order or an interim care order.

53. Ms Henke summarises her complaint as being that, by using section 38(6), the guardian and the court achieved a result – the placement of A, whilst subject to an interim care order, at a place of their choosing and over the local authority’s objections – that they could not have achieved by the making of a simple interim care order and thus, as she puts it, circumvented the statutory scheme and the various regulations. If what was done in this case is upheld then, she says, Pandora’s box is well and truly opened. 

54. Looking back to the authorities I have already analysed, Ms Henke says that the purpose of section 38(6) is to facilitate an assessment, not to direct a placement, and that insofar as the court directs a placement this part of its order can only be ancillary to the primary purpose, which is assessment. The vice here, she suggests, is that the Justices were in truth directing a placement and impermissibly using section 38(6) as a device to achieve, indirectly, what they could not legitimately achieve directly. Far from the placement here being merely ancillary to the assessment, the reality, she says, is that the assessment was ancillary to the placement. A was not being placed with the paternal great-grandmother and aunt so that she could be assessed; she was being placed with them because that is what everyone, including the Justices, agreed was appropriate.

55. Mr Powell’s response to all this is brisk and to the point. He says that the local authority has misunderstood the nature of the court’s powers under section 38(6) as explained by Lord Browne-Wilkinson in Re C, whose analysis in the passage I have already set out clearly demonstrates, he submits, the complete propriety of the order made the Justices. He accepts, of course, that, generally speaking, the court is not entitled to dictate to a local authority where it is to place a child subject to an interim care order; but section 38(6), he says, is an exception to that principle. He submits that, for the very reasons explained by Lord Browne-Wilkinson in Re C, any court dealing with the situation which here faced the Justices on 16 December 2008 – requiring further information as to the suitability of a placement – is entitled to direct an assessment under section 38(6) even though it may involve the placement of the child in a placement which would otherwise be illegal by virtue of the Placement of Children (Wales) Regulations 2007. And the plain fact, he says, is that both the guardian and the social worker, albeit for somewhat different purposes, required to be able to assess A, as it were in situ, before they could make their final recommendations. And an interim supervision order would not have sufficed, because this was, as the Justices properly accepted, a case where, at least for the time being, the local authority needed to share parental responsibility to ensure both that the process was not disrupted by A’s parents and that A had the benefit of the additional duties attaching to a local authority which has an interim care order as contrasted with an interim supervision order.

56. Mr Jonathan-Jones associates himself with Mr Powell’s submissions. He puts the point very shortly and very simply. The position on 16 December 2008 was that further assessment was required, both of A’s relationship with the paternal great-grandmother and aunt and of their ability, for example, to handle contact between A and her parents. And the best way to assess, in the circumstances, was by the immediate placement of A with the paternal great-grandmother and aunt, for what was required was an assessment of A whilst she was actually living with the paternal great-grandmother and aunt. In common with Mr Powell he says that the necessary assessment could not be undertaken – or, at the very least, not be so effectively undertaken – merely by a process of observing the paternal great-grandmother and aunt whilst they were having contact with A. Was that a proper exercise by the Justices of their powers under section 38(6)? He says it was. True it is, as he accepts, that in Re C Lord Browne-Wilkinson was not applying his mind to such a placement, but that does not, he submits, detract from the general import of what he said; and, as he points out, Lord Browne-Wilkinson did not choose to limit what he was saying in any way, let alone in such a way as would give any credence to Ms Henke’s submissions.

57. Mr Jonathan-Jones also makes the important point – which it might be thought draws much of the sting from Ms Henke’s concerns – that any court proposing to make a section 38(6) order involving a placement in a non-institutional and non-regulated setting will first have assured itself both that a section 38(6) assessment is appropriate on the facts of the particular case and, importantly, that the particular assessment envisaged is not merely appropriate but safe. It is for the court, as he says, to judge the qualities of the proposed placement and the risks involved. So, albeit a placement such as that directed here may be unregulated in the statutory sense, it is, in reality, he says, subject to effective and, no doubt, appropriately stringent vetting, regulation and supervision by the court.

58. Mr Skuse associated himself with Mr Powell and Mr Jonathan-Jones. Understandably, in the circumstances in which she found herself, Ms Thomas took an essentially neutral stance.

59. Before addressing Ms Henke’s submissions directly, there are two preliminary points about section 38(6) that need to be made. In the first place, although, perhaps because they are the most protracted and expensive and most likely to cut across a local authority’s planning, and thus most likely to be controversial, we tend to think of section 38(6) assessments in terms of residential assessments in the kind of institutional settings of which the Cassell is a well-known example, section 38(6) is much wider and more general in its scope. It applies to any “examination” (medical or psychiatric) or any “assessment”, whether short or long, and in whatever setting. Secondly, subject only to the requirement that the assessment be “of the child”, section 38(6) is not expressed as imposing any restrictions at all on what can be directed by the court. The court can direct any “assessment of the child.” The only further restriction is that suggested by Lord Browne-Wilkinson’s reference in Re C to the purpose of section 38(6) as being “to enable the court to obtain the information necessary for its own decision … to enable it to reach a proper decision at the final hearing of the application for a full care order.” But those words, far from narrowing the scope of section 38(6) merely serve, as it seems to me, to bring out and emphasise the potential breadth of its ambit.

60. The other preliminary observation is this: It is quite plain that, given the reasons why the guardian was arguing for it and, indeed, the reasons the Justices gave for directing it, the assessment directed by the Justices in the present case fell comfortably within the parameters of the permissible as described in Re G in the various passages anthologised in paragraphs [35]-[37] above. Moreover, in carefully directing themselves that “The court requires evidence of how A settled in with aunt and grandmother before it will make a Special Guardianship Order”, the Justices were, in my judgment, acting properly in accordance with the approach set out in Re C.

61. Having got this far in the analysis I can deal with Ms Henke’s submissions quite briefly.

62. The argument that section 38(6) does not confer any power to order that a child be placed, whether for the purpose of assessment or otherwise, in a particular placement, that being a matter for the discretion of the local authority once the care order (interim or final) has been made, is, with all respect to those propounding it, quite hopeless, being concluded against them by the decision of the House of Lords in Re C. And Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483, to which I was referred, is simply not authority for any such proposition.

63. The argument, on which Ms Henke focussed, that where a residential assessment is directed in accordance with section 38(6), the only kind of place which can lawfully be specified is a ‘residential family centre’ registered and regulated in accordance with the Care Standards Act 2000 and (in Wales) the Residential Family Centres (Wales) Regulations 2003, is also, in my judgment, lacking in substance. It involves reading into section 38(6) words of restriction which are simply not there – hardly surprisingly, perhaps, since the 1989 Act long predated the legislation on which Ms Henke relies. And it involves limitations on the scope of section 38(6) which, in my judgment, would cut across the statutory purpose as explained by Lord Browne-Wilkinson in Re R and, indeed, might well prevent many illuminating and forensically useful assessments of the kind envisaged by their Lordships in Re G.

64. Indeed, the present case is a very good example. What was needed was an assessment of A in situ with the paternal great-grandmother and aunt, yet that assessment, which the Justices justifiably took the view was “required” before they would make a final order, is, if Ms Henke is right, unlawful, or at least unlawful if coupled with an interim care order, even though the Justices had also, equally justifiably in my judgment, decided, in common with the guardian, that there was a need for the local authority to retain parental responsibility for the time being. 

65. Where, one asks, is the vice in what the Justices did here, always bearing in mind the purpose of section 38(6) as explained in Re C and Re G I can see none. On the contrary, given the scope and purpose of section 38(6), it would, if anything, be most unfortunate if what the Justices did was unlawful, because it would, to repeat, make it legally impossible for any court, without the agreement of the local authority, ever to direct an assessment in a family setting under the umbrella of an interim care order. And what is the vice in that?

66. Ms Henke provides two answers to that rhetorical question. The first is that the setting is unregulated and thus potentially unsafe. The response to this is that provided by Mr Jonathan-Jones: the setting is not unregulated; it is regulated by the court. The court, as I have said, will first have assured itself both that a section 38(6) assessment is appropriate on the facts of the particular case and, importantly, that the particular assessment envisaged is not merely appropriate but safe. And the court will no doubt take steps to ensure that the assessment is appropriately monitored or supervised as it proceeds – as it was in the present case, for, after all, the very purpose of what the Justices directed was that A should be observed in the family setting by both the guardian and the social worker.

67. Ms Henke’s second answer is that such an order leaves the child in a legal ‘no man’s land’. My response is that it does not. The child is placed, as A was placed here, in accordance with a tightly defined legal framework – an interim care order coupled with a section 38(6) order and other appropriate directions – and under the continuing control of the court.

68. In my judgment, the Justices acted here within their jurisdiction and in a perfectly lawful manner. Nor do I accept the suggestion that they impermissibly used section 38(6) as a device to circumvent statutory regulations or to achieve indirectly what they could not achieve directly. The Justices, to repeat, were in my judgment fully justified in concluding that A should be placed with the paternal great-grandmother and aunt but subject to that placement being assessed by the relevant professionals and subject also to the local authority retaining parental responsibility for A for the time being. That was a perfectly rational and sensible decision – and one, moreover, which accorded with the clearly expressed views of an experienced guardian. So the Justices cannot be criticised for the substance of the order they made; it was, in my judgment, plainly appropriate in the circumstances. And if they cannot be criticised for the substance of their order they are equally, in my judgment, not to be criticised for the perfectly proper and appropriate form of the order.

69. I therefore reject this ground of appeal.   

70. Mr Jonathan-Jones invites me to give guidance on the appropriate forum for future applications under section 38(6) in circumstances such as arose in this case. Are such applications, he asks, better suited for decision in the County Court rather than the Family Proceedings Court?

71. My answer is an emphatic No! If a case is otherwise proceeding appropriately in the Family Proceedings Court then there is no warrant for transferring it to the County Court merely because an application is made for an assessment under section 38(6), nor even because the application has unusual features such as were present in this case. A Family Proceedings Court is just as capable as any other court dealing with a care case to decide interlocutory issues such as arise on an application under section 38(6). It may be that there are complexities in a particular care case which justify a transfer – and it may be that those complexities are exemplified in part by disputes in relation to a proposed section 38(6) assessment – but the justification for the transfer in such a situation is the overall complexity of the case, not the mere fact that there is a disputed application for a section 38(6) assessment.

72. It was perfectly proper for the Justices to deal with the matter themselves in the present case. There was no need for the case to be transferred; on the contrary, such a transfer would, in the circumstances, have been both unnecessary, inappropriate and, in all likelihood, productive only of unhelpful delay.

The third ground of appeal: reasons inadequate
73. The Notice of Appeal complains (paragraphs 2 and 6) that the Justices failed to consider properly the application for an adjournment and the application for an assessment and failed to give any or any proper reasons for refusing the one and granting the other.

74. I can deal with this ground of appeal very shortly. I have set out the Justices’ written reasons in full. Those concerned to uphold their decision say that the reasons, although brief and economic, were adequate. Ms Henke submits that the reasons were too brief, too economic and too inadequate to pass muster.

75. Mr Powell points out that no request was made to the Justices by the local authority’s representative to expand their reasons. Moreover, since the matter had been argued out before the Justices prior to their giving their reasons, no-one, he says, can have been in any doubt as to the essential basis of their reasoning. He accepts that the Justices might have dealt more fully with their reasoning but submits that their reasons, if brief, suffice for what was, after all, only an interim hearing. Their relative brevity does not, he submits, entitle me to interfere.

76. I agree with Mr Powell. The reasons though brief – very brief – were adequate, though if they had been any briefer I might have had to come to a different conclusion. Here, as in other appellate contexts, it is vital to bear in mind the warning uttered by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at page 1372.

77. This ground of appeal also must be dismissed.

Conclusion
78. For these reasons the appeal fails and is dismissed.

Afterword
79. It will be recalled that on 16 December 2008 the Justices had directed that there was to be a review hearing on 20 January 2009. At that hearing it was agreed between the local authority, the paternal great-grandmother and aunt and the guardian that there should be an interim residence order in favour of the paternal great-grandmother and aunt together with a supervision order, on the grounds, as set out in the Justices’ written reasons, that, as A had settled well in her new placement and there were no issues arising about the placement, it was no longer necessary for the local authority to share parental responsibility and therefore an interim care order was not necessary. The mother and the father did not attend the hearing but were reported as being neutral (the father) or not objecting to the making of such orders (the mother). In the upshot the Justices made an interim residence order in favour of the paternal great-grandmother and aunt until 2 March 2009 coupled with an interim supervision order until 17 February 2009.

80. In these circumstances the appeal had became academic, save as to costs, by the time it came before me on 6 February 2009. The local authority was nonetheless determined to press on with the appeal, albeit that the focus was now on the second ground of appeal, the section 38(6) point, rather than the others. Ms Henke says that the issues surrounding section 38(6) are important, not simply to this case but to others – I understand there have been other similar cases in Family Proceedings Courts in the area. That position is supported by Mr Jonathan-Jones, who submits that, although the appeal is now academic, the legal point upon which clarification is sought is important, that it could in future be vital in a case where, as he puts it, the proposed placement is less happy and, in particular, when the answer to the questions posed in the appeal may not be immediately available from an appellate court, and that it is of some practical importance to practitioners in this field to have what he calls clarification of what Lord Browne-Wilkinson was saying in Re C.  

81. It is no part of my function to provide clarification of what Lord Browne-Wilkinson said in Re C, not least, if I may be permitted to say so, where the demi-gods have spoken with such clarity. But I am persuaded, not least because of what I understand are local concerns about the course taken by the Justices here, that there is advantage in an appellate court spelling out, for the assistance of local authorities and Family Proceedings Courts generally, that there is nothing objectionable in a court doing, in an appropriate case, what the Justices did here. So although the appeal had become academic, I was content to proceed, with the advantage of the vigorous adversarial argument which I was given and for which I am grateful to all concerned.

Costs
82. Mr Powell expresses the guardian’s concerns that the appeal was brought at all or, if brought, was not discontinued once the local authority’s shared parental responsibility disappeared by consent on 20 January 2009. He invites me not merely to dismiss the appeal but to direct that the local authority should pay the guardian’s costs.

83. I do not criticise Mr Powell for that submission. But I am not inclined to make any order for costs. The circumstances which justified my continuing with the appeal even though it had become academic equally demonstrate, in the particular circumstances, that an adverse order for costs would be neither fair nor appropriate, not least when it would merely be one public purse reimbursing another for the costs of elucidating a point of public interest.