Family Solicitors

By Emily Wright

S (A Child) [2011] EWCA Civ 812 - Assessment of Parents in Care Proceedings – Appeal by mother against refusal of an assessment under s.38(6) Children Act 1989.

This was a care proceedings matter in which we represented the respondent mother. The local authority obtained an interim care order in respect of the child, S, with a care plan for removal from the mother’s care and placement for adoption with no assessment of the mother to take place. We unsuccessfully appealed the first Interim Care Order and at the appeal hearing the proceedings were moved from the Family Proceedings Court, to the Principal Registry of the Family Division.

The mother had been involved in two previous care proceedings, in respect of her elder son and daughter. On both occasions the mother was not able to consistently meet her children’s needs and her daughter was placed for adoption and her son placed under a special guardianship order. The mother had experienced poor parenting herself and was diagnosed with emotionally unstable personality disorder, for which she was receiving treatment. There were also concerns about her chaotic lifestyle and risky personal relationships.

A s38(6) application for further assessment was made within these proceedings on the mother’s behalf and following consideration of reports from an expert clinical psychologist and psychiatrist, and a contested hearing with oral evidence from the experts, the court dismissed the application for further assessment on the grounds that the mother had not sufficiently addressed her own difficulties to be able to care for her child, and that the timescales required for this were not in the child’s best interests.

This decision was appealed. Permission to appeal was granted by Lord Justice Ward on the papers on 19th May 2011. The appeal relied on the principal in Re L and H (Residential Assessment) [2007] EWCA Civ. 213 that parents should be given the opportunity to put forward a positive case at a final hearing. It was argued that without a further assessment the mother would have no evidence of parenting at the final hearing and therefore the outcome of the final hearing would be a foregone conclusion. It was argued therefore that the mother would not have a ‘fair’ final hearing. It was also argued that the Judge put too much weight on the fact that a residential assessment would disrupt the mother’s ongoing course of psychotherapy and that the judge did not put enough weight on the fact that a viability assessment had been available for no cost and would not have caused any delay, it was argued that this would be a proportionate piece of evidence which would have assisted the court in reaching a decision.

The appeal was dismissed. The President stated that the Judge had correctly exercised her judicial discretion by making an interim decision and that this was correct and appropriate case management. The President further stated that the Judge had correctly accepted expert evidence that a residential assessment would not address the concerns about the mother caring for the child in the community and that allowing time for her to address her personal issues was not in the child’s timescales. Lord Justice Moore Bick agreed with the President as did Lady Justice Black. Lady Justice Black additionally commented on previous case law and stated that Re L and H recognized there would be cases where further assessments would not add any evidence which would help the Judge made a decision at final hearing. Parents do not have a right of further assessment; the question is always whether the assessment would assist the Judge in reaching the right conclusion at the final hearing.