In the matter of Re H (A Child: s. 38(6) Assessment)

H is a little girl who will soon be eleven weeks old. She was born preterm and suffered with symptoms of withdrawal from Morphine, Methadone, Cocaine and Mirtazapine. Regrettably, her parents are long term drug users and in 2018 her sibling was made the subject of care and placement orders. Since her discharge from hospital, H has lived in foster care under an interim care order. H’s parents continue to have regular contact with her and with the support of her father, the mother invites the court to direct that H should join them in a residential placement for the family to be assessed.

The proposed residential assessment centre is Phoenix Futures. This is a specialist centre that provides an invaluable service for adults with drug and alcohol dependency. Its work is highly regarded and permits children to safely join their parents during their residence within its facilities. Whilst recognising the skilled and specialist intervention that Phoenix Futures provides, the local authority opposes the mother’s application on three fundamental grounds which may be summarised as follows:

H’s guardian supports the placement and joins the parents in their detailed submissions in support of the mother’s application and in response to the points raised by the local authority. Phoenix Futures has not accepted my invitation to formally intervene in these proceedings but has submitted a helpful skeleton argument which I have carefully considered. In summary it states that the proposed assessment comes within the ambit of the statutory requirements for this to be an assessment of H and its current registration meets all legal requirements.

Therefore, the issues before me, may be summarised in the following order;

The relevant statutory provisions are set out in s.s 38(6) and (7) of the Children Act (1989). In summary, under the provisions of the former subsection, where the court has made a child the subject of an interim care or supervision order, the court may direct the medical, psychiatric examination, or direct other assessments of the child. Under the latter provisions, such a direction may prohibit such an examination. Furthermore, when directing such an examination or assessment of the child, the court must be satisfied that this is “necessary to assist the court to resolve the proceedings justly”. When exercising its jurisdiction, the court must have regard to all of the factors that are set out in s. 38(7B)

The application of these provisions is now long settled under the guidance of the House of Lords in Re C (a minor) (interim care order: residential assessment) [1996] 4 All ER 871, [1997] AC 489 and later in Re G (a minor) (interim care order: residential assessment) [2006] 1 All ER 706. These are well known authorities that I do not intend to cite in detail. However, I observe that they remain determinative of the interpretation and application of the above mentioned statutory provisions. In the second case, when giving her leading judgment, Baroness Hale of Richmond concluded at paragraph 69;

In 2018 each of the parents presented very differently. Their engagement with the professionals and the support that was offered was poor. The threshold findings of the court at the time when their older child was made the subject of care and placement orders, are very concerning. However, the more recent evidence demonstrates a significant change in the parents’ attitude to professionals and their engagement with support. Each of the parents has demonstrated a high degree of commitment to treating their addiction and most importantly to H. Although H does not currently reside with them, they have maintained high levels of contact with her. There can be no doubt that the parents should be properly assessed as to their capacity to care for H for the rest of her life and how the family may be supported to achieve this end.

The National Specialist Family Service (‘NSFS’) comes under the general umbrella of Phoenix Futures which is a charity for the treatment of drug and alcohol dependency. NSFS holds a dual registration, firstly with the Care Quality Commission (‘CQC’) that relates to its drug and alcohol treatment, and secondly with Ofsted which concerns the provision of childcare and nursery facilities. NSFS can accommodate families whilst the adult members of the family undergo treatment. It further provides parenting and family development support whilst the family reside within its facilities. There are other additional provisions such as the onsite nursery, including observations by qualified nursery staff and weekly visits by a health Visitor. The information that is gathered will be shared with the allocated social work team and may inform any parenting assessment of the parents. NSFS does not undertake a parenting assessment. Furthermore, NSFS specifically caters for families and to be a parent is one of the key eligibility criteria. Phoenix Futures has over twenty years of experience in this field and continues to work with many local authorities throughout England and Wales. I am aware that more recently it has extended its services to include Scotland.

Having taken the lead on the arguments in support of the application for a placement at NSFS, with familiar care and skill, Mr Forbes relies on the observations of Lord Scott of Foscotte (paragraphs 6 and 7), and Baroness Hale of Richmond (paragraphs 65 and 69) in Re G (above). He identifies the correct question to be asked is ‘what is the purpose of the assessment and not what is the main purpose of Phoenix Futures?’ Mr Forbes properly accepts that for this assessment to fall within the provisions of s. 38(6), any intervention and treatment of the parents must be ancillary to the main purpose of assessing H. I entirely agree with these submissions.

The argument is developed by identifying that a drug dependency is not per se a bar to parenting and the issue is its impact on parenting (see Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 and Re A (Application for Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1). Therefore, he submits that to properly answer the fundamental question about the purpose of any assessment, one must turn to the terms of any instructions and the questions that Phoenix Futures are required to answer. To illustrate the point, he proposes that the questions in any letter of instructions may be termed as follow:

Therefore, he argues that if the questions are asked within the parameters that are set in Re G, the court can readily conclude that the main focus of the proposed assessment is H. This approach would not fall foul of the decision of the Court of Appeal in Re Y (A CHILD) (SECTION 38(6) ASSESSMENT) [2018] EWCA Civ 992 as it is distinguished from the present case in circumstances where, with the exception of question 4, the remaining six questions that were asked in the letter of instructions in that case fell outside of the parameters identified in Re G and the court’s conclusions in Re Y were inevitable.

Re Y concerned an assessment in Phoenix Futures which was permitted by the first instance Judge after a careful analysis of the law and the available expert evidence in those proceedings. On appeal, Jackson LJ observed that there are two questions to be asked,

Is this a proposal for an assessment that falls within the terms of s. 38(6)?

If so, is the assessment necessary to assist the court to resolve the proceedings justly, as required by s. 38(7A), having regard to the matters in s. 38(7B)?”

In this case, Phoenix Futures has provided a response to an invitation by Mr Forbes for its comments on his proposed draft questions. In an email dated 25 April 2023, adopting the same letters for the proposed questions, it states;

Responding with equal clarity, Mr Kirkwood submits that the court lacks jurisdiction to order an assessment under s. 38(6) of the Act when the focus of the assessment is not H but the rehabilitation of her parents. He observes that the first half of the proposed six month assessment is mainly concerned with a programme of detoxification for the parents which is likely to be very challenging for them. The length of the said programme cannot be reduced due the current high levels of methadone that the parents are prescribed. Therefore, the assessment falls foul of the parameters that are set by Baroness Hale of Richmond in Re G when she states:

Mr Kirkwood further submits that there is nothing in the character of the proposed assessment that puts H at the centre of the assessment. He draws an analogy with information that is provided in contact records or logs from a foster placement and how these may feed into an assessment in public law proceedings. That information cannot be characterised as an assessment. He observes that the information that may be gathered by Phoenix Futures about H amounts to no more than this and this is not an assessment of H. Therefore, he submits that there is nothing in the information that is provided about Phoenix Futures that would distinguish the present case from Re Y.

He further develops the argument by reference to Phoenix Futures’ current registration with CQC and Ofsted which make no reference to any assessment of children within its facilities. Furthermore, having reflected on the terms of the Care Standards Act (2000) (s. 24(2) and s. 11) and Residential Family Centre Regulations (2002) as amended in 2013, he submits that the carefully worded responses from Phoenix Futures illustrates a fine line that separates a properly registered rehabilitation provisions and the commission of a criminal offence for not being appropriately registered as a children’s home by not coming within the exceptions that are set out in the regulations. Thus, he addresses the second issue as a further reason to reject the mother’s application.

Finally, he submits that the local authority would be profoundly concerned about H’s welfare should she be placed in the residential setting when the parents will be undertaking a highly challenging detoxification programme with a proposed plan that will not see the parents caring for H in the community for at least six months and the court not having a final assessment of any description for about nine to twelve months. Such a delay would be contrary to H’s welfare and an alternative robust assessment would provide the court with all the necessary information to make a final decision for H’s future within or close to the statutory time limits.

As I have observed earlier, Phoenix Futures provides a highly specialist intervention that has and I hope will continue to benefit many individuals and families. Notwithstanding the skill and zeal with which the case has been argued on behalf of the parents, I cannot find that the proposed assessment is an assessment of H. The information that is before me clearly demonstrates that the parents will be the main focus of a rehabilitation intervention and any observations of H with her parents will provide some information that may inform other assessments. In my judgment H will not be the focus of the proposed assessment and I do not find any material change in the approach of Phoenix Futures to that which was identified by Jackson LJ in Re Y. Recognising the important work that Phoenix Futures undertakes, it is with a heavy heart that I conclude that the proposed assessment does not fall within the remit of s. 38(6) and accordingly dismiss the mother’s application.

Having reached a conclusion on the first issue, I need not consider the remaining two issue in detail. However, I observe in passing that had I found the assessment to come within the remit of s 38(6), I would have been very concerned about the registration requirements under the 2000 Act and 2002 (amended) Regulations together with the possible consequences of not being appropriately registered. Furthermore, whilst the courts have a discretion to sanction purposeful delay that may include a lengthy assessment period, for example where there is requirement for a period of residence with a would be special guardian to undertake a full and robust assessment, in the face of such significant delay as in the instant case, the burden placed upon any party seeking a lengthy residential assessment is a heavy one to justify. Having in mind the words of Baroness Hale of Richmond, I am not persuaded that such a delay would be justified in this case particularly when there are other proportionate and expeditious means by which the necessary assessments can be undertaken.

There are many local authorities that place families at Phoenix Futures. Such placements are quite different to one that is to be sanctioned under s. 38(6). Whilst a placement under the said statutory regime cannot be sanctioned by the court, nothing that I have said in this judgment should be interpreted as discouraging any relevant agencies to engage with Phoenix Futures and in appropriate cases to invoke the permissible routes through which families can benefit from the important work that Phoenix Futures undertakes.