Kent County Council v. G and Ors.

[2005] UKHL 68
Download Judgment: English

K, the local authority initiated care proceedings to remove a child, E, from her parents, G and X. However, they were persuaded to agree to a short period of assessment at a specialist hospital and an interim care order was duly made under s 38(1)[1] of the Children Act 1989 (‘the Act’), including directions as to the assessment of the child made pursuant to s 38(6)[2]. A further period of assessment was subsequently directed by the court upon the hospital’s recommendation. The hospital’s report strongly recommended that the family be offered a lengthy period of rehabilitation, with extensive psychotherapy for the mother, which could best be done in a residential setting.

The local authority agreed in principle to in-patient treatment, subject to funding. The NHS Trust and local social services authority were unwilling to fund a further period at the hospital. G and X challenged this decision before the High Court on the grounds inter alia that their right to a family life under Article 8[3] of the European Convention on Human Rights (‘the ECHR’) placed the local authority under a positive obligation to provide such treatment.

The High Court held that it had no power to direct the local social services authority to fund further in-patient treatment because the proposal fell very clearly on the side of therapy rather than assessment and the giving of directions for therapeutic treatment of a parent could not be brought within s 38(6). G successfully appealed to the Court of Appeal which reversed the High Court’s decision on the grounds that the medical evidence did not support the High Court’s conclusions on the scope of its powers under s 38(6).

The local authority appealed.



End notes

[1] Section 38(1) provides: ‘Where (a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or (b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.’

[2] Section 38(6) provides: ‘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; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.’

[3] Article 8 provides: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’


[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal, it was held that: (1) The test to be applied in relation to s 38(6) is whether the proposed order involves an investigation qualifying as a ‘medical or psychiatric examination of the child’. A broad and purposive construction is appropriate. Thus the phrase ‘of the child’ is to be understood as meaning the child in the context of his or her family, so that the investigation may extend to considering the capacity of a parent to care for the child (Re C (A Minor)(Interim Care Order: Residential Assessment) [1997] AC 489 considered). However, what is not permitted under s 38(6) is the giving of directions for either a longer process aimed at bringing about long term change, or a program focused in substance on the child’s parent and the improvement of his or her parenting skills. (2) The purpose of s 38(6) cannot be to ensure the provision of services either for the child or his family. There is nothing in the 1989 Act which empowers the court hearing care proceedings to order the provision of specific services for anyone. To imply such a power into s 38(6) would be quite contrary to the division of responsibility which is the ‘cardinal principle’ of the 1989 Act (R (G) v Barnet London Borough Council [2004] 2 AC 208 and Re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291 considered). In this respect it is correct to conclude that any further in-patient treatment had gone beyond what fell within the court’s power to order under s 38(6).

(3) The refusal of the court to direct that the mother should undergo therapeutic assessment at hospital in order to prevent the child being taken into care does not breach Article 8 of the ECHR. Article 8 neither places the local authority under a positive obligation to provide such treatment nor creates a right to be made a better parent at public expense.



[Adapted from INTERIGHTS summary, with permission]

Lawyers: For the Appellant: Charles Howard QC; instructed by Sharpe Pritchard, agents for Secretary, Kent County Council For the Respondent: Jonathan Cohen QC; instructed by Davis & Simmonds and Herringtons