Y (A Child) (S.38(6) Assessment)

A direction under section 38(6) of the Children Act 1989 requires two affirmative findings. The proposal must be an examination or assessment of the child, and it must be necessary to assist the court to resolve the proceedings justly.

The assessment may include the child’s relationship with the parents and the risks they present. Its main focus must nevertheless remain on the child. Services for the family must be ancillary to gathering information and cannot be an end in themselves. A programme whose main purpose is parental treatment does not become a permissible assessment merely because it may provide valuable evidence about future parenting capacity.

The local authority appealed against an order of HHJ McKinnell directing it to fund the placement of a seven-month-old child and her parents at Phoenix Futures. The facility provided residential drug rehabilitation, parenting support and child-development services. The judge considered the placement necessary to assess the parents’ abstinence, parenting under pressure, attachment to the child and management of risk.

The local authority argued that the programme was principally treatment for the parents rather than an assessment of the child within section 38(6) of the Children Act 1989. The central issues were whether the proposed placement fell within section 38(6) and, if so, whether it was necessary to resolve the care proceedings justly.

1. The appeal was allowed. The parts of the Family Court’s order relating to assessment by Phoenix Futures were set aside. The care proceedings were returned to the Family Court, and the Court of Appeal expressed no view about their ultimate outcome.

2. An application under section 38(6) of the Children Act 1989 raises two questions. First, the proposed examination or assessment must fall within section 38(6). Secondly, it must be necessary to assist the court to resolve the proceedings justly under section 38(7A), having regard to section 38(7B). Both questions must be approached consistently with the fair-trial and family-life rights protected by Articles 6 and 8. A direction may be made only when both questions are answered affirmatively.

3. The House of Lords authorities establish that an assessment may extend to the child’s relationship with the parents, the risks they present and the means of managing those risks. Its main focus must nevertheless be the child. Information gathering is distinct from service provision. Any services provided to the child or family must remain ancillary to the assessment and cannot be an end in themselves.

4. The judge had mischaracterised Phoenix Futures as a residential assessment unit. Its principal function was specialist drug treatment intended to help the parents become drug-free. Although treatment might generate useful information about their later ability to abstain and care for the child, that did not bring the programme within section 38(6). The court therefore lacked power to require the local authority to commission it.

5. It was unnecessary to decide the second question. There was, however, doubt about whether a qualifying residential assessment would have been necessary. Information was already available from social workers, drug services, testing, an independent social worker and the Children’s Guardian. The questions the assessment could answer, the other evidence and the cost required consideration under section 38(7B).

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 992, allowed the local authority’s appeal and set aside the parts of the order concerning assessment by Phoenix Futures.

2. Family Court: HHJ McKinnell ordered the local authority on 20 February 2018 to finance the placement of the child and her parents at Phoenix Futures. No citation is stated.