K (A Child)

On an application for an assessment under section 38(6) of the Children Act 1989, the court must assess whether the proposed assessment can assist the determination of the issues and whether refusal would unfairly deprive a parent of a meaningful opportunity to meet a care-order application. A short assessment may be relevant even though it cannot resolve the longer-term question whether a parent will make and sustain changes to lifestyle risks. It was material that an expert regarded a further assessment as helpful. A refusal founded on the view that the assessment did not address the issues before the court was unsustainable where it did address them.

The local authority sought a care order for I, an infant. The mother applied under section 38(6) of the Children Act 1989 for a two-day assessment by Family Care, including a short observation of her with I.

On 25 May 2007, HHJ Yelton in the Peterborough County Court refused the application. He considered that the decisive issues were the mother’s drug and alcohol misuse and domestic violence in the parents’ relationship, rather than whether she could parent I properly. The mother sought permission to appeal and pursued the appeal. The local authority and guardian opposed it. The central issue was whether the proposed assessment could properly assist the imminent final care hearing.

1. Appeal allowed. The Court of Appeal granted the application and made a limited intervention in the county court’s case management so that the assessment could proceed on 26 June.
2. Thorpe LJ held that the judge’s stated reason for refusal was unsustainable. The proposed assessment did address issues before the court. Although it could not determine whether the mother would make sufficiently lasting changes to the risks arising from substance misuse and domestic violence, it was capable of providing relevant evidence about her parenting and the appropriate way forward.
3. The relevance of the assessment was reinforced by Dr Levy’s addendum. It described the mother’s contact progress as encouraging and regarded a residential assessment as a helpful further step. The judge’s apparent failure to refer to that opinion increased the concern about the refusal.
4. Fairness required that the mother have the opportunity to participate in the brief assessment and, if appropriate, place a positive report before the judge at the final hearing. Without it, her ability to resist the care-order application would be jeopardised. A negative report would instead fortify the local authority’s case, demonstrating that the assessment was also capable of assisting the court.
5. Wall LJ and Hedley J agreed. Family Care indicated that its report would be available in time for the final hearing.

• Court of Appeal (Civil Division): Allowed the mother’s appeal in [2007] EWCA Civ 697 and directed that the proposed assessment proceed.
• Peterborough County Court: On 25 May 2007, HHJ Yelton refused the mother’s application for an assessment under section 38(6) of the Children Act 1989.