Re C (Interim Care Order: Residential Assessment)

Factual and Procedural Background

The case concerns an infant (“the Child”) who sustained serious, non-accidental injuries while in the care of his very young parents. An emergency protection order was obtained on 1 November 1995, followed by an interim care order under section 38 of the Children Act 1989 on 9 November 1995. The Child has since lived with foster-parents.

Local authority social workers produced an “Orange Book” report after seven months’ observation, concluding that a residential assessment of the Child together with his parents was “essential” to test their capacity to care for him over prolonged, stressful periods (including nights). A clinical psychologist and the guardian ad litem agreed.

The Local Authority refused to fund or arrange that assessment, indicating it would seek a final care order aimed at permanent alternative placement. The parents applied to the High Court for a direction under section 38(6) requiring the residential assessment. Judge Browne-Wilkinson (anonymised here as “Judge Hogg”) granted the direction. The Local Authority successfully appealed to the Court of Appeal, which felt constrained by its earlier decision in Re M (Interim Care Order: Assessment). The parents now appeal to the House of Lords.

Legal Issues Presented

1. Does section 38(6) of the Children Act 1989 empower a court to direct a residential assessment involving the Child and his parents, notwithstanding the Local Authority’s opposition?
2. If such power exists, how should the court balance that discretion against the Local Authority’s control over the Child during an interim care order and its limited financial resources?

Arguments of the Parties

Appellants’ (Parents’) Arguments

• Section 38(6) should be construed purposively to permit any assessment necessary for the court to determine whether to make a final care order.
• Without a residential assessment, the Local Authority’s refusal would effectively pre-empt the court’s ultimate decision on the Child’s future.
• The cost of the assessment is a discretionary factor, not a jurisdictional bar.

Respondent Local Authority’s Arguments

• The phrase “other assessment of the child” in section 38(6) is limited (ejusdem generis) to examinations akin to medical or psychiatric tests of the child alone, not joint residential assessments.
• A direction specifying location and duration usurps the Authority’s statutory power to decide the Child’s placement under an interim care order.
• Courts should not compel the expenditure of scarce public resources that the Authority must allocate among competing social-service demands.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading opinion, Judge Browne-Wilkinson adopted a purposive construction of section 38(6). Key analytical steps were:

• Purpose of s 38(6): To supply the court with information essential for deciding whether to make a final care order, even though day-to-day control lies with the Local Authority during the interim period.
• Interaction with s 38(7): Sub-section (7) empowers the court to prohibit proposed assessments, indicating a broad supervisory function that must extend beyond narrow medical examinations.
• Rejection of Ejusdem Generis Argument: “Other assessment” cannot be confined to medical or psychiatric tests; assessing a young child inevitably involves evaluating parental interaction.
• No Usurpation of Placement Powers: A direction for assessment is not a “placement” under s 23 Children Act; therefore it does not infringe the Authority’s statutory duties regarding residence.
• Resource Considerations: Cost is a factor within judicial discretion but does not remove jurisdiction. The Local Authority could have provided fuller evidence of budgetary constraints; having failed to do so, the first-instance judge’s balancing exercise was unimpeachable.

Holding and Implications

Appeal ALLOWED; the High Court’s order directing a residential assessment is restored.

Implications: The House of Lords confirms that courts do have jurisdiction under section 38(6) to order comprehensive assessments—including residential assessments involving parents—when necessary to inform the final care-order decision. While financial impact on a Local Authority remains a relevant discretionary consideration, it is not a bar to jurisdiction. The ruling realigns the balance between judicial oversight and local-authority autonomy, ensuring courts are not pre-empted from obtaining critical evidence in child-protection cases.