CT & Anor v Bristol City Council & Ors

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).

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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: -

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.

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

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.

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:-

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:

He concluded on this point, however, that:-

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

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:-

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:-

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.

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.

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

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.

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.

Dr Drayton put the matter in the following way:-

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.

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 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:-

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

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.

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: -

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

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.

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.

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 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.

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: -

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.

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.

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:-

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.

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).

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 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.

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.

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.

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).

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.

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.

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:-

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.

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).

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.

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.

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

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.

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

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.

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.

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.

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

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

Lord Browne-Wilkinson thus concluded:-

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):

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:-

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

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

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:-

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”.

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

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.

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.

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.

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.

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.

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:-

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.

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.

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.

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.

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.

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.

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.

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.

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.

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”.

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.

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

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.

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.

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.

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