In the course of care proceedings, they had been compelled to pay about £200,000 to provide a therapeutic residential placement for a family pursuant to section 38(6) of the Children Act 1989. The case had a happy ending; the family stayed together. But the local authority wanted to make it clear for the future that this had been an improper use of section 38(6) of the Children Act 1989 and argued that the court could not compel a local authority to pay for therapy for parents under a statutory provision directed at assessments of the child.The House of Lords – as they then were – agreed. However, they went further than simply restating the purpose behind section 38(6). Lord Scott is emphatic (see para 24):
There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to “respect” for their “family life”. Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie’s mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie’s parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie’s or the parents’ article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense.
There appears to be no way to compel the state to fund treatment for mental health problems. The Children Act does not identify on whom the cost of compliance with its directions falls. A judge in care proceedings cannot compel either a local authority or NHS trust to provide any particular treatment for a parent. Medical or psychiatric treatment of parents would ordinarily be funded by the local NHS Trust but waiting lists can be very long (and thus well outside the timetable for the child) and the particular therapy a parent needs may not be available locally..
The Family Court has no powers to compel the NHS to fund anything. The Legal Services Commission has long been very clear that they will not fund any element of therapy or treatment.
I have attempted to bring proceedings under the Human Rights Act 1998 for damages which would be used to fund therapy – which turned out to be futile because the statutory charge would have swallowed any damages whole. Damages under the HRA are purposefully kept low as they are to provide ‘just satisfaction’ not punishment and lawyers are strongly encouraged to make applications under the HRA within existing care proceedings – thus ensuring a large amount of costs have already built up on any existing legal aid certificate. I have discussed further the apparent futility of any application under the HRA in this post.
Judicial review of refusal to fund is inapt as it is a challenge to the merits of the decision making process, not the substance of the decision.
I have two fundamental problems with this position. First, how do we square that with our Article 8 obligations? Second, who is conducting a proper cost/benefit analysis of the consequences that flow from failing to provide mental health services to parents? Not all cases involved residential placements and many thousands of pounds. Many cases revolve about who will fund a six month course of therapy in the region of £5,000.
What about our Article 8 obligations?
Re B-S (Children)  EWCA 1146 did not change the law. But it was a clear wake up call to all those lawyers and local authorities who had hitherto skated lightly over essential jurisprudence in their analysis of care proceedings. There is no doubt that Article 8 of the ECHR imposes a positive obligation upon states to keep families together (see para 18):
To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:
“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
How do we square that circle? What are we saying to vulnerable parents who are unable to access support or treatment for their mental health difficulties and/or drug abuse, who are thrown into stressful care proceedings and expected to engage constructively with professionals picking apart every aspect of their lives? In particular, what are we saying to parents who are vulnerable because of their experiences as children, often as children in the care of the state?
Where is the cost/benefit analysis?
There is no doubt that care proceedings are both costly and time consuming for local authorities (see research from University of Bristol in 2011).
To refuse to fund treatment for mental health issues, is not only risking a breach of Article 8 but also to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.
I have had experience now of several cases which appear to stall around an argument about who will fund a six month course of therapy costing in the region of £5,000. This represents a small fraction of the total cost of contested care proceedings.
I accept that there are difficulties in that those holding the purse strings in different organisations such as local authorities and the NHS, may have different priorities. But in sadly many of my cases, there appears to be a distinct lack of willingness for officials to talk to one another about what is or is not feasible, despite so many years of promotion of the underlying principle in child protection work, that we are all ‘working together’ to promote the welfare of children.
To refuse to fund treatment for mental health issues is therefore not only risking a breach of Article 8 but also to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.
I am not aware who, if anyone, is conducting the necessary cost/benefit analysis. If it is not being done, it is urgently required.
I am not naive. I know that public funds are finite and fought over by many deserving causes. But it seems to me at least, that we now live in the worst of all possible worlds. Every effort is made to dodge funding therapy for parents in care proceedings whilst at the same time maintaining that care proceedings are a legitimate and lawful process and providing a lot of public money to keep them running.
This is turning into a farce. One that is very expensive to maintain, not only in terms of money wasted, but at great human cost and misery.
Sarah Phillimore specialises in family law at St Johns Chambers in Bristol
Sign up to free human rights updates by email, Facebook, Twitter or RSS