C (Children)

Section 38(6) of the Children Act 1989 permits the court to order a residential assessment at a specialist institution where the purpose is to assess parenting capacity, including the parents’ capacity to respond to treatment.

Cost is relevant, including the effect on the local authority’s wider responsibilities, but it is not decisive by itself. A local authority relying on a financial objection must present properly prepared, detailed and testable evidence, including evidence of reasonable efforts to obtain contribution funding. An assessment should be refused for disproportionate expenditure only where the financial case is properly established.

The parents applied under section 38(6) of the Children Act 1989 for a residential assessment of the family at the Cassel Hospital. The local authority accepted that a residential assessment was required but proposed a less specialised alternative, principally because of cost.

The county court accepted that the proposed assessment fell within section 38(6), but refused the Cassel placement on the basis of the local authority’s budgetary evidence and directed that the alternative placement be funded. It later emerged that the evidence concerning possible shared funding had been inaccurate and that the cost evidence had not been tested. The central issue on appeal was whether the refusal of the Cassel assessment was justified.

1. Appeal allowed. The court directed a residential assessment at the Cassel Hospital. The decision below had been reached on misleading and inadequately tested financial evidence.
2. Section 38(6) includes a residential referral designed to assess how parents care for their children, including assessment of their capacity to accept and respond to psychotherapy or other treatment. The fact that therapeutic work occurs during the assessment does not remove its essential character as assessment.
3. The Cassel Hospital was within the court’s jurisdiction. The specialist evidence supported it as the appropriate referral for the family’s complex needs, and the local authority had no expert evidence supporting the proposed alternative.
4. Cost is a material consideration. The court must weigh the benefit to the children against the local authority’s wider responsibilities to other children. A properly evidenced and proportionate financial objection may justify refusal.
5. However, the local authority had to prove its financial case by evidence capable of being evaluated and challenged. The evidence was filed shortly before the hearing, was general, unsupported by oral evidence, and was not open to cross-examination. There was also no reliable evidence that reasonable efforts had been made to obtain funding contributions from health and education budgets.
6. The county court’s refusal could not stand. The appeal was allowed, the Cassel assessment was directed, and there was no order for costs except detailed assessment for publicly funded parties.

• Court of Appeal (Civil Division): Appeal allowed; residential assessment directed at the Cassel Hospital.
• Medway County Court: The court accepted that a residential assessment fell within section 38(6) of the Children Act 1989, but refused the Cassel placement and funded the alternative proposed by the local authority.