M (A Child), Re

In care proceedings involving a minor parent who lacks litigation capacity, the Official Solicitor must investigate properly open avenues and obtain evidence appropriate to the parent’s case. A court should be slow to refuse a specialist psychiatric assessment requested for that purpose, particularly where refusal would deprive the parent of any positive case. Proportionality must include the possibility that a further report may confirm existing evidence and shorten the litigation. A preliminary referral for a viability assessment is not the same as an application under section 38(6). Refusing that referral because the case appears hopeless risks pre-judgment and may deny the parent a fair, Article 6-compliant forensic process.

M, a minor mother lacking capacity to conduct litigation, appealed from HHJ Hughes QC’s refusal of applications for a specialist psychiatric assessment by Dr Shaw and for the papers to be referred to Crown Lodge for a viability assessment. Existing evidence included a failed residential assessment and a psychologist’s opinion that M could not presently provide adequate parenting without intensive therapy. The local authority and the child’s guardian opposed further investigation. The appeal concerned whether the proposed evidence was necessary and proportionate, and whether refusing it deprived M of a fair opportunity to present her case in the care proceedings.

1. Disposition. The appeal was allowed. The Official Solicitor was given leave to instruct a child and adolescent psychiatrist and to refer the papers to Crown Lodge.
2. Thorpe LJ held that M’s incapacity and dependence on the Official Solicitor materially distinguished the case from ordinary case-management decisions. The Official Solicitor required specialist evidence addressing both M’s disability and its effect on her potential to parent S. A judge should therefore be slow to refuse the assessment, particularly where refusal would effectively remove any prospect of resisting the care and placement orders.
3. Proportionality required consideration of the report’s possible effect on the future conduct and cost of the litigation. Although the proposed fee was substantial, a report agreeing with the existing evidence might bring the forensic process to an end and could therefore be an economical step.
4. The request to send the papers to Crown Lodge was preparatory to a possible application under section 38(6), not itself an application for an assessment under that provision. The referral involved only a short period awaiting an answer and might involve no cost if Crown Lodge declined the case. In assessing fairness, the relevant question was whether, consistently with Article 6, it was fair to deprive M of a positive case at the final hearing.
5. Wall LJ agreed and emphasised the Official Solicitor’s duty to investigate avenues properly open to him and obtain appropriate evidence. The local authority was entitled to form its own view, but the ultimate decision rested with the judge, who required all relevant evidence that could properly be obtained. Refusal of both requests was therefore wrong in principle and risked pre-judging the outcome. Wall LJ relied on and expressly stood by the fairness principle stated in Re L and H [2007] 1 FLR 1370, and referred to RP v The Nottingham City Council [2008] EWCA Civ 462 concerning the Official Solicitor’s role.

• Court of Appeal (Civil Division): On 28 January 2009, allowed the appeal and reversed the case-management decisions of the court below: [2009] EWCA Civ 315.
• Principal Registry, Family Division: On 10 October 2008, HHJ Hughes QC refused applications for a psychiatric assessment by Dr Shaw and for referral of the papers to Crown Lodge.