Carmarthenshire County Council v Evans & Anor

In care proceedings, a court has jurisdiction under section 38 of the Children Act to direct an assessment even where a child is already in care. An error on that issue does not require an adjournment if the lower court independently concluded that delay was unacceptable and the prospects of successful reunification were insufficiently high. The child’s welfare remains paramount, and delay is detrimental. The assessment must consider parental progress, the child’s ability to settle with the natural family, existing attachment to foster carers, and the risk of harm from disruption. A settled placement may make reunification too uncertain or too late.

The parents sought discharge of a care order and an indefinite adjournment for continued assessment. The local authority sought a freeing for adoption order. On 5 December 2000, HHJ Wyn Richards held that he lacked jurisdiction under section 38 of the Children Act to direct an assessment, refused the adjournment because delay and uncertainty were unacceptable, and refused the freeing order. There was no appeal from the latter decision.

On appeal, the court considered whether the jurisdictional error required a further assessment and whether later child-psychiatric evidence concerning the child’s established attachment to the foster carers altered the balance. The father also pursued a cross-appeal.

The appeal was dismissed unanimously. The application to adduce further evidence was granted, and the father’s cross-appeal was dismissed.

1. Jurisdiction. The President held that the judge was plainly wrong to conclude that he lacked power under section 38 of the Children Act to direct an assessment merely because the child was in care. The Court of Appeal had power to order such an assessment.
2. Independent exercise of discretion. The jurisdictional error was not the major basis of the decision. The judge had independently concluded that the proposed assessment and indefinite adjournment would cause unacceptable delay and leave the child’s long-term future uncertain. That conclusion could therefore stand despite the error of law.
3. Prospects and timescale. An assessment should be directed only where there are very high prospects of success. The inquiry must include parental progress and the child’s ability to settle with the natural family. It must also account for the child’s existing attachment, the likely harm caused by disruption, and the length of any further uncertainty.
4. Application. The parents’ progress was encouraging but incomplete. The child had lived with the foster carers from 18 days old, had formed a strong attachment to them, and was approaching his third birthday. Dr Westman’s report provided compelling evidence that moving him would be harmful and that no available timescale could achieve the move without harm. The issue was whether the family could now become serious contenders, not a fresh choice between natural parents and foster carers.
5. The later evidence strongly reinforced the judge’s independent conclusion. The care order was not discharged, and the appeal was dismissed. There was no order for costs, subject to legal aid assessment for all parties except the local authority.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 892, the court admitted further evidence, dismissed the appeal against refusal of an adjournment, and dismissed the father’s cross-appeal.
• Swansea Crown Court: HHJ Wyn Richards refused the parents’ application for an adjournment and refused the local authority’s freeing for adoption application. The refusal of the freeing order was not appealed.