G (A Child: S.38(6) Assessment)

The power to order an assessment under section 38(6) of the Children Act 1989 arises only where the particular assessment is necessary to enable the proceedings to be resolved justly. The court must consider the statutory factors, including welfare impact, the issues and questions the assessment would address, available evidence, the procedural timetable and cost. A residential assessment may precede fact-finding in principle. However, where unexplained injuries are central to child protection proceedings, the court must first assess whether the proposed assessment has sufficient value, whether it is necessary at all and what questions it can answer. A possible later need for an assessment does not establish present necessity.

The local authority brought care proceedings after a child was found to have numerous unexplained injuries. The Family Court at Bristol made an interim care order and placed the child in foster care. The mother applied under section 38(6) of the Children Act 1989 for a 12-week residential assessment with her child. The judge granted the application, with liberty to the local authority to apply to set it aside after police disclosure.

The local authority and the Children’s Guardian appealed. They argued that the assessment was premature, that the risk of emotional harm had not been properly considered, and that the assessment’s purpose could not be determined before the factual circumstances of the injuries were established. The central issue was whether the assessment was necessary at that stage of the proceedings.

Appeal allowed. The assessment order was set aside and the mother’s application was dismissed.

1. The power under section 38(6) of the Children Act 1989 arises only where the court is of the opinion that the particular assessment is necessary to enable it to resolve the proceedings justly. Section 38(7B) requires consideration of matters including welfare impact, the issues and questions to be addressed, evidence otherwise available, procedural effect, cost and prescribed matters.
2. The appellate court gives considerable latitude to the first-instance judge’s evaluation. Intervention is justified where the conclusion is one the judge could not reasonably have reached.
3. The judge had considered some statutory factors, including the child’s welfare, the delay in police disclosure, the timetable and court resources. However, she had not properly addressed whether the proposed assessment could answer the central question of how the injuries were caused. Nor had she identified the questions to be answered by the psychological assessment or considered that the residential assessment might be unnecessary altogether.
4. A residential assessment before fact-finding is not barred as a matter of principle. In this case, however, the assessment could have only limited value while the injuries remained unexplained. The nature of any psychological assessment would also differ depending on whether the mother was found responsible for the injuries. The court should first chart the proceedings and timetable the fact-finding or composite hearing before deciding what assessments are necessary.
5. The absence of another assessment application and the delay in police disclosure did not justify making the order. The court also noted that cost must always be considered and that expenditure on an assessment of this scale should be required only where the specific assessment is necessary. The judge remained free to consider any fresh Part 25 application on its merits.

1. Court of Appeal (Civil Division) — On 28 February 2020, the court allowed the local authority’s appeal, set aside the residential assessment order and dismissed the mother’s application: [2020] EWCA Civ 282.
2. Family Court at Bristol — On 24 January 2020, HH Judge Cronin granted the mother’s application under section 38(6) of the Children Act 1989 for a residential assessment, with liberty to the local authority to apply to set the order aside.