S (A Child)

In an appeal against a discretionary decision on a residential parenting assessment, the Court of Appeal should intervene only where an error in the balancing exercise is sufficiently serious to make the decision plainly wrong.

The court must weigh the possible evidential benefit of an assessment against the child’s welfare, delay, disruption, the completeness of existing information, and the practical consequences for the child’s placement. An expert recommendation is important but does not determine the application. Where the judge has considered the relevant positive and negative factors and fairly balanced them, the appellate court should not substitute its own view.

A young mother sought permission to appeal against an order of His Honour Judge Atkins in the Croydon County Court dated 20 May 2008. The judge had dismissed her application under section 38(6) of the Children Act 1989 for a residential assessment of herself and her child at the Cassel Hospital, and had refused permission to appeal.

The proposed assessment was supported by the Cassel’s recommendation. The local authority opposed it, relying on earlier failed or withdrawn assessment arrangements, delay, the child’s attachment to her foster carer, and concerns about the mother’s conduct and engagement. The central issue was whether the judge had exercised his discretion incorrectly by refusing the assessment without filling an alleged gap in the evidence.

1. Application refused; appeal dismissed if permission granted. The Court of Appeal held that the judge had exercised his discretion appropriately.
2. The appellate jurisdiction in relation to a discretionary decision was extremely limited. Intervention was justified only if the judge had made an error in the balancing exercise of such seriousness that the conclusion was plainly wrong.
3. The judge had carried out the required balancing exercise. He considered the positive factors, including the mother’s youth, her status as the child’s natural mother, and the Cassel recommendation that there was sufficient capacity and motivation to undertake the work. He also considered the negative factors: the failed Jamma Umoja assessment, the mother’s refusal to co-operate and difficult behaviour, an earlier withdrawn application, the substantial delay already incurred, likely disruption to the child, the risk to the child’s foster placement, gaps in the information supplied to the Cassel, and whether the proposed assessment would provide relevant new evidence. The threshold criteria under section 31 of the Children Act 1989 were conceded.
4. The decision in Re L and H (Residential Assessment) [2007] EWCA Civ 213 did not require a different result. The present case was materially distinguishable because the assessment would interfere with the fixed final hearing, the expert recommendation was not clear and uncontradicted, the care plan was for a kinship placement rather than adoption, and the evidential and behavioural circumstances differed.
5. The judge was entitled to conclude that the factors against ordering the assessment outweighed those in favour by a substantial margin. The possibility that the assessment might be therapeutic rather than evidential was not essential to the result, since he stated that he would have reached the same conclusion without relying on that consideration. The order refusing the assessment therefore stood.

• Court of Appeal (Civil Division): application for permission to appeal refused. The court stated that, if permission were granted, it would dismiss the appeal.
• Croydon County Court: on 20 May 2008, His Honour Judge Atkins dismissed the mother’s application under section 38(6) of the Children Act 1989 for a residential assessment and refused permission to appeal.