(Family Division; Munby J; 20 April 2009)
The child was placed with foster carers when she was 2 weeks old and an interim care order was made. It became apparent that neither parent would be able to give the child adequate care. Following a positive viability assessment of the paternal great-grandmother and the paternal aunt, they were granted leave to apply for special guardianship orders. The local authority filed a care plan contemplating a plan for special guardianship, and a special guardianship report supported them as special guardians. By the date of the hearing it was common ground between the authority, the guardian and the family that the child should be placed with the great-grandmother and aunt. However, there was a difference of view concerning the structure of the initial placement. The grandmother and aunt had originally wanted an explicitly family placement, under Fostering Services (Wales) Regulations 2003, reg 38(2), but the authority considered that, because the aunt had a conviction, she would not qualify under these regulations. The authority therefore proposed that the child's placement should be by means of interim residence and supervision orders. The guardian, supported by the family, opposed this, arguing that the placement needed a testing period, with protective and supportive measures in place, not least because of concerns about the parents' reaction to the placement, and to contact. The guardian therefore wanted the local authority to retain parental responsibility for a time under an interim care order, and asked the justices to use their powers under Children Act 1989, s 38(6) to direct the local authority to place the child with the great-grandmother and aunt for the purpose of an assessment. The justices made the orders sought by the guardian. The authority appealed, arguing that the justices had misused s 38(6).
Section 38(6) assessments tended to be thought of in terms of residential assessments in institutional settings, because these were the most protracted and expensive assessments, and the most likely to be controversial, but s 38(6) was much wider and more general in its scope, applying to any 'examination' (medical or psychiatric) or to any 'assessment, whether long or short, and in whatever setting, providing only that the assessment in question was 'of the child'. The only other restriction on what could be directed by the court under s 38 (6) was, as set out in Re C (Interim Care Order: Residential Assessment)  1 FLR 1, the purpose of the section, that is enabling 'the court to obtain the information necessary for its own decision . . . to enable it to reach a proper decision at the final hearing of the application for a full care order.' In fact, these words, far from narrowing the scope of s 38(6) merely served to bring out and emphasise the potential breadth of its ambit. Section 38(6) did not contain any words requiring the court to specify a 'residential family centre' as the place of assessment. The placement in this case was not unregulated: it was a placement regulated by the court, in accordance with a tightly defined legal framework. The justices had been fully justified in concluding that the child should be placed with the great-grandmother and aunt, subject to the placement being assessed by professionals and also to the local authority retaining parental responsibility for the child for the time being. It was emphatically not the case that such cases were better suited for decision in the county court rather than the family proceedings court. The justices had provided adequate, albeit very brief, reasons.