W & M (Children)

Under section 38(6) of the Children Act 1989, a court may refuse a residential assessment where its likely value is limited and the resulting delay is contrary to the children’s overall interests. The court must consider whether the assessment is necessary for deciding the care application, whether it would provide material otherwise unavailable, and whether delay outweighs any immediate benefit. The assessment’s utility may be limited where parental progress has occurred only in controlled circumstances and the central risk, such as relapse into substance misuse, can be tested only over time in the community. An appellate court must not substitute its own view for that of the first-instance judge where the decision was carefully reached and was not plainly wrong.

The parents appealed from an order made by HHJ Marston in the Portsmouth County Court on 31 July 2009 during care proceedings concerning their five children. The judge refused their application for a residential assessment of their parenting ability under section 38(6) of the Children Act 1989 and refused permission to appeal. The parents argued that an assessment was necessary, that earlier assessments were inadequate, and that delay had been given excessive weight. The local authority and children’s guardian opposed the application. The central issue was whether refusal of the assessment was a lawful and properly exercised discretion.

1. Permission and disposition. Permission to appeal was granted, but the appeal was unanimously dismissed. The first-instance judge had been entitled to refuse the residential assessment.
2. Section 38(6) inquiry. The judge correctly addressed whether the assessment was necessary to discharge the court’s duty, whether it would provide material otherwise unavailable, and whether it was contrary to the children’s interests when viewed broadly and in the long term. Although deficiencies in the local authority’s assessment process and delay attributable to the authority were relevant, they did not determine the application.
3. Assessment and delay. The judge was entitled to attach decisive weight to the parents’ serious history of drug misuse, limited insight, the short and controlled nature of their abstinence, the interdependence of their circumstances, their lack of experience parenting all five children, and the likely limited value of an assessment undertaken before sustained abstinence had been demonstrated in the community. The risk of relapse required testing over time and in real-world conditions. Delay could therefore justify refusal where the prospects of a useful assessment were weighed against disruption and the children’s need for timely permanence.
4. Appellate restraint. Lord Justice Wall held that allowing the appeal would impermissibly substitute the appellate court’s view for that of the experienced trial judge. Lord Justice Thorpe agreed. The refusal of an assessment did not necessarily determine the care proceedings, and the judge remained required to consider all available evidence, including updated evidence concerning the parents’ ability to remain drug-free in the long term. The appellants’ costs were to be assessed.

• Court of Appeal (Civil Division): On 22 October 2009, permission to appeal was granted but the appeal was dismissed: [2009] EWCA Civ 1278.
• Portsmouth County Court: HHJ Marston refused the parents’ application for a residential assessment under section 38(6) of the Children Act 1989 and refused permission to appeal.