M (A Child), Re

In care proceedings, a direction for residential assessment under section 38(6) of the Children Act 1989 depends on whether the assessment will provide evidence needed for a properly informed decision about the child’s future. A parent has no general right to an assessment of their choice, or to a further assessment merely to enable a positive case to be presented. The judge must decide the issue on the facts, with the child’s welfare and procedural timetable in view. A provisional indication does not prevent a later contrary decision where the parties understand that the issue remains open and have a full opportunity to make submissions. An appellate court should interfere only where the refusal is plainly wrong or outside the range reasonably open to the judge.

The mother appealed during ongoing care proceedings concerning N and K. The father of K was later joined as an appellant. HHJ Waine had previously allowed an appeal and directed a residential assessment under section 38(6) of the Children Act 1989, but on 11 August 2011 refused a further six-week extension at Orchard House.

The appeals challenged the fairness of the procedure following a provisional indication in favour of an extension and alleged that refusal of the extension was plainly wrong. The central issues were whether the process was procedurally unfair and whether the further assessment would usefully assist the eventual care decision.

1. Disposition. The mother’s and father’s appeals were dismissed. The decision to refuse the further six-week residential assessment was within the judge’s discretion.
2. Procedural fairness. A provisional indication, even one expressed more strongly than a cautious provisional view, did not conclude the issue. The parties understood that the question remained open, returned ready to address it on its merits, and made full submissions. The mother’s absence from the later hearing did not itself establish procedural irregularity. The court was satisfied that no relevant oral evidence had been lost. The father could have given evidence about his willingness to leave work, but that did not alter the central issue.
3. Statutory approach. Under section 38(6) of the Children Act 1989, the judge had to decide on the facts of the particular case whether the assessment process, or other evidence, was necessary to make the right and well-informed decision for the children. There was no general parental right to an assessment of the parent’s choice or to an assessment merely to enable a positive case to be presented. The court referred to Re S [2011] EWCA Civ 812, particularly paragraph 93 of Black LJ’s judgment, and to the guidance in Re C and Re G.
4. Application of the discretion. The July incidents showed that concerning behaviour had recurred even under close residential supervision. The mother’s therapeutic needs required a substantially longer period of intervention, and a further six weeks was unlikely to produce useful evidence within the timetable acceptable for N. In a proposed joint-care arrangement, the mother’s ability to care safely remained critical. The father’s willingness to participate could be explored through evidence and non-residential assessment, but did not require the residential placement to continue.
5. Appellate restraint. The refusal could be overturned only if it was outside the range reasonably open to the judge. A finely balanced discretionary decision was less susceptible to appellate interference because it lay more centrally within the judge’s evaluative function.

1. Court of Appeal (Civil Division): Dismissed the mother’s and father’s appeals against HHJ Waine’s refusal to extend the residential assessment.
2. Northampton County Court: In March 2011, HHJ Waine allowed the mother’s appeal from the justices’ refusal to direct a residential assessment and made a section 38(6) direction. On 11 August 2011, he refused a further six-week extension.
3. Northamptonshire justices: In December 2010, refused the mother’s application for a residential assessment and made a final care order.