S (A Child), Re

A direction under section 38(6) of the Children Act 1989 serves the court’s need for information required to decide care proceedings. A parent has no general right to an assessment or to evidence capable of presenting a positive case.

The court should order a further assessment only where it may contribute something important that existing evidence cannot provide. The decision must remain child-focused and reflect the child’s timetable. Refusal is compatible with procedural fairness where the proposed assessment would add nothing material, even if the parent risks permanent separation from the child.

The mother appealed against HHJ Hughes QC’s refusal, in ongoing care proceedings concerning her infant child, to direct a residential parenting assessment under section 38(6) of the Children Act 1989. The judge had obtained oral and written evidence from a psychiatrist and psychologist instructed by the mother. Their evidence indicated that a residential placement would reveal little about her ability to parent in the community and that the therapeutic change required would take longer than the child could wait.

The mother argued that refusal prevented her from obtaining evidence with which to resist a final care order and therefore infringed her rights under articles 6 and 8 of the European Convention on Human Rights. The central issues were the proper exercise of the section 38(6) discretion, fair case management and the appellate court’s approach to that discretionary decision.

1. Appeal dismissed unanimously. The judge’s refusal of an assessment was well within her discretion. She had identified the critical questions, obtained relevant expert evidence and given clear and cogent reasons for concluding that the proposed assessment would serve no useful purpose.

2. Section 38(6) of the Children Act 1989 enables the court to obtain information needed to decide care proceedings, notwithstanding the local authority’s interim control of the child. The inquiry is child-focused: the question is whether the assessment will assist the court to reach the correct decision about the child, not whether the parent has a right to another assessment.

3. There is no general principle that a parent facing permanent removal of a child must be allowed an assessment of the parent’s choice or an opportunity to assemble a positive case. Earlier Court of Appeal decisions allowing assessments turned on their particular facts. They included material expert support, changed circumstances or the special position of an incapacitated minor represented by the Official Solicitor.

4. Further assessment is unnecessary where it will contribute nothing important beyond the information available from the local authority, guardian and existing experts. Here, even a successful residential assessment would address only functioning in a protected placement. It would not overcome the evidence that the mother required therapeutic work extending beyond the child’s timetable for a permanent home.

5. The process complied with article 6. A party’s evidence had failed to establish the case that party wished to advance, and fairness did not require further unproductive evidence gathering. The mother remained able at the final hearing to seek to question the experts about her long-term capacity to provide good-enough parenting. The judge had also properly balanced the family-life interests protected by article 8.

6. Active case management must reflect the timetable for the individual child. A section 38(6) hearing is ordinarily shorter and more narrowly focused than the final hearing. The judge must consider that limitation when deciding necessity, while regulating the evidence and format without allowing the interim application to become an extended final hearing.

1. Court of Appeal (Civil Division): Dismissed the mother’s appeal and upheld the refusal of a residential parenting assessment under section 38(6) of the Children Act 1989.

2. Principal Registry of the Family Division: HHJ Hughes QC refused the mother’s section 38(6) application on 21 March 2011, giving written reasons on 22 March 2011.

3. Principal Registry of the Family Division: The same judge had earlier dismissed the mother’s appeal against the interim care order. That decision was not appealed to the Court of Appeal in these proceedings.