A court making an interim care order in favour of the local authority had power under s 38(6) of the Children Act 1989 to direct that both the child concerned and its parents be placed at a residential assessment centre pending the final hearing of care proceedings.
The House of Lords allowed the parents' appeal against the decision of the Court of Appeal (Case Summaries, 11 November 1996) and restored the decision of Mrs Justice Hogg, directing that the parents and child be placed together in a residential assessment unit.
Section 38 provides:
(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child . . .
(7) A direction under subsection (6) may be to the effect that there is to be - (a) no such examination or assessment . . .
The child, born on 11 June 1995, was made the subject of an interim care order after suffering serious non- accidental injuries for which his parents were unable to provide a satisfactory explanation. The parents were both young and inexperienced, the mother being 17 at the time of his birth, the father 16, and lacked family backing. The court appointed a guardian ad litem for the child, who was placed with foster parents.
Social workers employed by the local authority concluded that an in-depth assessment at a residential unit was essential to test the parents' long- term ability to cope. That recommendation was supported by a clinical psychologist who had assessed the parents, and by the guardian ad litem.
The local authority did not agree, and opposed the application on the ground that the court had no jurisdiction to make the order under section 38(6). The judge rejected that argument and, in the exercise of her discretion, decided to make the order sought; but the Court of Appeal reversed her decision.
Anthony Rumbelow QC and Gillian Irving (Sharpe Pritchard, for Booth & Middleton, Oldham) for the mother; A. Rumbelow QC and Anthony Hayden (Sharpe Pritchard, for Norcross Lees & Riches, Oldham) for the father; David Harris QC and Maureen Roddy (G.F. Smith, Oldham) for the local authority; Lesley Newton and Ceri Warnock (Temperley Taylor, Oldham) for the child's guardian ad litem.
Lord Browne-Wilkinson said the judge's attention had not been drawn to the then unreported decision of the Court of Appeal in Re M (minors) (Interim care order: directions)  3 FCR 137, holding that there was no jurisdiction under section 38(6) to order such residential assessment.
The appeal court in the present case held that it was bound by its earlier decision in Re M, but was plainly unhappy at the result.
There were two possible constructions of section 38(6) and (7), one narrow, the other purposive and broader. The Court of Appeal in Re M adopted the narrow view. It held that the words "other assessment of the child" had to be construed ejusdem generis with the words "medical or psychiatric examination", and attached decisive importance to the fact that the subsection only referred to examination or assessment "of the child", not of any other person.
His Lordship could not accept this narrow construction. The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. The purpose of subsection (6) was to enable the court to obtain the information necessary for its own decision.
It was true that subsections (6) and (7) only referred to assessment "of the child" but it was impossible to assess a young child divorced from its environment. The interaction between the child and its parents or other carers was an essential element in making any assessment of the child.
The subsections should be broadly construed. They conferred jurisdiction on the court to order or prohibit any assessment which involved the participation of the child and was directed to providing the court with material which it required to reach a proper decision at the final hearing.
Paul Magrath, Barrister