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Kent County Council v G & Others [2005] UKHL 68

This case raises an important question about the extent of the court’s power under section 38(6) of the Children Act 1989 to give directions for the “medical or psychiatric examination or other assessment of the child.”

Kent County Council v G & Others [2005] UKHL 68

House of Lords: Lord Scott Of Foscote, Lord Clyde, Lord Walker Of Gestingthorpe, Baroness Hale Of Richmond, Lord Mance (24 November 2005)

This case raises an important question about the extent of the court's power under section 38(6) of the Children Act 1989 to give directions for the "medical or psychiatric examination or other assessment of the child."

These proceedings related to the mother's third child, Ellie. The mother's second child had died of multiple non-accidental injuries whilst in the care of the mother and the second child's father. No clear conclusion could be made by the court as to who was responsible for the child's death. However, the mother was deemed to present too significant a risk to allow the first child to remain in her care. The first child was placed with his father. The mother then formed a new relationship and Ellie was born, whereupon the local authority initiated care proceedings. Their care plan was to remove Ellie from her parents and place her for adoption. However, they were persuaded to agree to a six week period of assessment (later increased by a further six weeks) at the Cassel residential family centre. The Cassel was specifically requested to concentrate on the issues surrounding the death of the second child. During the second six week period the mother did begin to address these issues and the Cassel recommended that the family be offered rehabilitation with psychotherapy for the mother, which could be done in a residential setting. However, the local social services authority was unwilling to fund a further period at the Cassel. The court held that there was no power to direct the authority to fund a further period of in-patient treatment because what was proposed was therapy rather than assessment. However, the Court of Appeal reversed this decision stating that the essential question should always be; can what is sought be broadly classified as an assessment to enable the court to obtain this information necessary for its own decision? The issue for the House of Lords was whether, on a true construction of section 38(6), that question is indeed the "essential question" for the court.

The principal purpose of section 38(6) was to enable the court to control, and therefore be able to limit, the number and type of examinations or assessments that a child who had become the subject of care proceedings could be required to undergo. The subsection seems to have become, however, by judicial development a vehicle for achieving a much broader purpose. The issue of this appeal was whether that development represents a legitimate extension of the original statutory purpose. Their Lordships agreed that it did not. If the framers of the Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for them, let alone their parents, it would have said so. It is the present capacity with which the court is concerned. It cannot be a proper use of the court's powers under section 38(6) to seek to bring about change. The court may have to accept that it is not possible to know all that is to be known when deciding whether or not to make a care order, because the choice will depend upon how the family and the child respond and develop in the future. What is directed under section 38(6) must clearly be an examination or assessment of the child. 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. The appeal was allowed.

Read the full text of the judgment here