I (Children: Child Assessment Order)

A child assessment order under the Children Act 1989, s 43, is an investigative and least interventionist child-protection measure. The threshold of reasonable cause to suspect is deliberately low and is not lost because a local authority has formed stronger concerns or taken other protective steps. The assessment may gather qualitative information about whether harm exists, its nature and extent, and the support or further intervention required. Evidential gaps that the assessment is intended to fill do not defeat the application. The power is not confined to emergencies and may suit suspected cumulative harm. A competent child may refuse the assessment, but opposition is an important factor rather than an automatic bar. The court must evaluate current risks and the consequences of non-intervention proportionately.

The father of five children had convictions arising from extremist and terrorist activities. After his release from prison, concerns increased about the children’s exposure to his views and the mother’s protectiveness. The parents withdrew consent to an assessment by an Intervention Provider intended to evaluate the children’s vulnerability and resilience to extremist propaganda.

The High Court, on 18 December 2019, refused the local authority’s application for a child assessment order. The Children’s Guardian and local authority appealed. The central issues were whether the court had power to make an order after the local authority had taken other protective steps, whether the statutory criteria and proportionality requirements were satisfied, and what weight should be given to objections by the older children.

1. Disposition. Peter Jackson LJ, with whom Moylan and Newey LJJ agreed, allowed the appeal. The court made a child assessment order in the terms drawn up by the parties and concluded that remittal was unnecessary.
2. Jurisdiction and statutory scheme. Section 43 forms part of the initial investigation and assessment stage under the Children Act 1989. The condition of reasonable cause to suspect significant harm is a relatively low threshold. The ordinary rule that the greater includes the lesser applies. A local authority’s stronger belief, or its decision to use child-protection procedures, does not make a child assessment order unavailable. The only statutory restriction identified was the requirement to make an emergency protection order instead where that course is appropriate. The approach was consistent with the distinction between suspicion and proof discussed in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Re B (Children) [2008] UKHL 35.
3. Nature and necessity of assessment. The assessment required by s 43(1)(b) is not limited to a yes-or-no answer about harm. It may identify whether harm exists, its nature and extent, and what further action or support is justified. The fact that information about the father could have been obtained from other agencies did not make assessment of the children unnecessary. That reasoning was circular because the assessment was intended to fill an evidential gap. The parents’ refusal of cooperation also supported the conclusion that satisfactory assessment was unlikely without an order.
4. Merits and proportionality. Although an appeal from an evaluative decision faces a high hurdle, that hurdle was met. The judge had treated the local authority’s earlier delay as disproportionately important, underweighted the risks arising from the father’s long-held views and the parents’ withdrawal of cooperation, and assessed the case as though the children’s good progress displaced the risk. Risk of this kind could not be treated as historic until positively shown not to exist. A child assessment order was the least intrusive available intervention and was plainly proportionate to the identified concerns.
5. Children’s objections and subject matter. Under s 43(8), a child of sufficient understanding may refuse to participate. Nevertheless, opposition by an older or competent child is an important consideration, not an automatic bar. The court preferred this approach to the dicta in Re Q (Child: Interim Care Order: Jurisdiction) [2019] 2 WLR 1161. The objection of the older children could not justify refusing an order for the youngest child. The proposed assessment concerned vulnerability and resilience in the face of extremist propaganda presented as religious faith, not the children’s religious faith itself.

1. Court of Appeal (Civil Division). Appeal allowed and child assessment order made: [2020] EWCA Civ 281.
2. High Court (Family Division). Newton J refused the local authority’s application after the final hearing on 4 December 2019, handing down judgment on 18 December 2019.