W (A Child), Re

Under section 38(6) of the Children Act 1989, a court should ordinarily direct an assessment if it is necessary for determining an application for a care order. Necessity, scope and duration require rigorous scrutiny, particularly where a residential assessment is proposed. A residential parenting assessment may properly be postponed where the central issue is the risk of unpredictable future mental-health relapse rather than current parenting ability. Independent psychiatric evidence may be required before deciding whether such an assessment is necessary. The court, rather than the local authority, determines whether the assessment should take place.

These care proceedings concerned an infant removed from her mother under an emergency protection order and placed with her father. The mother retained frequent, high-quality contact and sought a residential assessment with the child at Orchard House, supported by the child’s guardian and initially by the father.

The mother had a history of serious mental-health difficulties, while the available evidence suggested that her current condition was stable but left questions about future relapse and risk. Bristol County Court refused a direction under section 38(6) of the Children Act 1989, considering a psychiatric report necessary before any residential assessment. The central issues were whether that refusal exceeded the judge’s discretion and whether the application should have been adjourned rather than dismissed.

Lord Justice Wilson delivered the judgment, with Lord Justice Lloyd and Lord Justice Carnwath agreeing.

1. The appeal was dismissed, subject to substituting adjourned generally for dismissed in paragraph 1 of the county court order.
2. Section 38(6) of the Children Act 1989 gives the court a discretion to direct an assessment. The established principle, stated in In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, is that an assessment which is necessary for the proper determination of the care application should ordinarily be directed. Cost is relevant to the exercise of the discretion, although the court considered it difficult to see how cost could determine whether an assessment was necessary. Financial pressures on local authorities justify rigorous scrutiny of the asserted necessity of a residential assessment and of its proposed duration.
3. The judge was entitled to regard the proposed assessment as premature. A positive assessment of the mother’s parenting while she was well might give a falsely positive impression if the decisive issue was the likelihood, seriousness, frequency and manageability of future relapses. It was proper to obtain independent psychiatric evidence first, particularly because the treating psychiatrist had declined to enter the forensic arena and had indicated that her diagnosis required further assessment.
4. On appeal, the question was whether the judge had exceeded the discretion conferred by section 38(6), not whether the appellate court would have made the same evidential choice. The judge’s approach was rational and disclosed no error requiring intervention. Nevertheless, since his judgment contemplated a renewed application after the psychiatric report, and public funding difficulties could impede that application, the application should be adjourned generally to enable it to be re-presented swiftly and seamlessly.

• Court of Appeal (Civil Division): Appeal dismissed subject to replacing “dismissed” with “adjourned generally” in paragraph 1 of the order.
• Bristol County Court: On 3 February 2011, HHJ Harington refused the mother’s application for a direction under section 38(6) of the Children Act 1989 and permitted the parties jointly to instruct a consultant psychiatrist.