CT & Anor v Bristol City Council & Ors

A residential assessment under section 38(6) of the Children Act 1989 may assess a young child together with the parents. It may examine parenting skills, the parental relationship under the stress of caring for the child, risks to the child and ways of managing those risks.

The child must participate as an integral part of a genuine assessment. The assessment must gather information needed for the court’s decision. Treatment or services may be ancillary, but must not become an end in themselves.

The court should ensure that it has the evidence necessary to decide whether a child can safely remain within the natural family. A refusal may be procedurally unfair where compelling independent evidence supports an assessment and its absence would effectively determine the care proceedings against the parents.

The mother and the putative father appealed against HHJ Ticehurst’s refusal in Bristol County Court to direct a residential assessment of their newborn child, M, under section 38(6) of the Children Act 1989. M and his older half-sibling, SA, were the subjects of ongoing care proceedings brought by Bristol City Council.

The parents had significant histories of unstable relationships and deficient parenting. A jointly instructed consultant clinical psychologist nevertheless considered that they had potential to provide adequate care. He strongly recommended a residential assessment to observe the mother’s practical parenting and the couple’s ability to manage conflict and stress while caring for M. The proposed unit was willing to undertake the assessment with close monitoring.

The judge regarded the proposal as an assessment of the parents and their relationship, involving therapy, and therefore outside section 38(6). The central questions were whether he had misunderstood the proposed assessment and whether it fell within the statutory jurisdiction explained in Re C and Re G.

1. Disposition. The appeals were allowed unanimously. The refusal was set aside and a residential assessment under section 38(6) of the Children Act 1989 was ordered. Wall LJ gave the judgment, with which Thorpe LJ agreed.
2. Section 38(6) must receive the broad, purposive construction established in Re C. It permits an assessment involving the child which supplies material required for the court’s final decision. A young child cannot sensibly be assessed apart from the caregiving environment. The assessment may therefore examine the parents’ interaction with the child, their parenting abilities, the risks they present and their ability to manage those risks.
3. Re G did not narrow that construction. It established a boundary between genuine assessment and treatment. The child must participate as an integral part of the matter assessed. Services provided to the child or family must remain ancillary to information-gathering and must not become an end in themselves.
4. The judge materially misunderstood the proposal. The Family Resource Unit was to observe the mother’s practical parenting and the parents’ relationship under the stress of caring full-time for M in a controlled environment. The proposed cognitive behavioural and relationship therapy was separate, concurrent support rather than part of the residential programme. The assessment therefore fell within Re C and was materially different from the therapeutic admission considered in Re G.
5. The proposed assessment addressed the central welfare question: whether M could safely be reunited with his parents. Before permanently removing children from their natural families, a court must scrutinise the care plan and ensure that the case has been fully investigated. On the evidence, denying the assessment would deprive the parents and the court of an important and potentially decisive source of evidence. That would be procedurally unfair.
6. The Court did not establish general guidelines requiring residential assessments. Some assessments will serve no useful purpose, particularly where the professional evidence is unanimously against them. Here, however, the strong, balanced recommendation of the jointly instructed psychologist was a powerful reason to order one.
7. The judge also erred by relying upon delay when a place had originally been available and the assessment could have finished before the final hearing. The July fixture was nevertheless to remain. Section 1(2) continued to apply, time was of the essence, and the fixture should be vacated only for powerful reasons.

1. Court of Appeal (Civil Division): Permission to appeal was granted, the appeals were allowed, the refusal was set aside and a residential assessment under section 38(6) of the Children Act 1989 was ordered: [2007] EWCA Civ 213.
2. Bristol County Court: HHJ Ticehurst refused the parents’ applications for a residential assessment of M and refused permission to appeal.