S (Children)

A residential assessment under Section 38(6) may be extended where it remains necessary to obtain material information for the final welfare decision, particularly where later developments have changed the assessment’s focus. The court must apply the guidance in the leading authorities to the particular circumstances. Practical convenience cannot itself justify an extension. Parallel planning should address both arrangements after the assessment and the possibility of permanent separation.

The local authority challenged HHJ Karsten’s decision at a November 2007 hearing to permit a further twelve-week residential family assessment at the Cassell Hospital. The original assessment concerned the mother and two children, but the father later joined them, materially changing its focus.

The local authority argued that the further assessment was unlawful under the guidance in Re C (Residential Assessment) [1997] 1 FLR 1 and Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601 HL. The central issue was whether the further assessment remained legally justified because important information about the family’s future was still unavailable.

1. Application refused. Lord Justice Thorpe held that the further assessment was lawful on these exceptional facts. The judge had identified material information still required before deciding the children’s long-term future, including whether the mother could separate from her maternal family, whether the father could protect the children from dangerous contact, and the nature of the mother’s relationship with her brothers.
2. The Court of Appeal distinguished the circumstances from those considered by the House of Lords in Re C (Residential Assessment) [1997] 1 FLR 1 and Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601 HL. The parents were still caring for the children under supervision, there was no interim care order, the assessment had been jointly instructed, and its purpose had changed when the father joined the family.
3. The court distinguished legal requirements from practical considerations. Immediate removal would have risked serious harm to the children, while ending the assessment and returning the family to the community was also considered risky. The further assessment therefore remained justified because the court lacked information needed to decide whether the children could safely remain with their parents.
4. The court emphasised genuine parallel or concurrent planning. Professionals should make arrangements for the period after the assessment and prepare for possible permanent separation, including any necessary transition from parental to adoptive care.
5. Lord Justice Keene agreed. He emphasised that there could be no lawful justification for a further Section 38(6) order beyond the end of the assessment in late January, before the final hearing.

• Court of Appeal (Civil Division): refused the local authority’s application and upheld the further assessment arrangement.
• High Court, Principal Registry of the Family Division: HHJ Karsten ordered a twelve-week assessment in March 2007 and later sanctioned a further twelve-week assessment after the father joined the family.