In the matter of Re H (A Child: s. 38(6) Assessment)

An assessment directed under section 38(6) of the Children Act 1989 must be an assessment of the child. It may include assessment of the child’s relationship with the parents, risks posed by them, and how those risks may be managed. Treatment or rehabilitation provided to the parents must remain ancillary to that purpose.

Observations gathered during a parental rehabilitation placement, which merely inform another assessment, do not satisfy section 38(6). A lengthy residential assessment also requires particularly strong justification where it would cause significant delay and proportionate, more expeditious alternatives are available.

H, an eleven-week-old child subject to an interim care order, was living in foster care. Her parents sought an order under section 38(6) of the Children Act 1989 for H to join them at Phoenix Futures’ National Specialist Family Service for a proposed six-month residential placement.

The placement would provide parental drug treatment, family support, observations and progress reports. Phoenix Futures did not undertake an independent parenting assessment. The local authority opposed the application, arguing that the placement focused on parental rehabilitation, raised registration concerns under the Care Standards Act 2000, and would cause substantial delay. The central issue was whether the proposed placement constituted an assessment of H within section 38(6).

1. Application dismissed. The proposed residential placement did not fall within the court’s jurisdiction under section 38(6) of the Children Act 1989.
2. The court applied the established approach in Re C (a minor) (interim care order: residential assessment) and Re G (a minor) (interim care order: residential assessment). The statutory power concerns an examination or assessment of the child, including, where appropriate, the child’s relationship with the parents, risks posed by them, and methods of avoiding or managing those risks. Services provided to the parents and family must be ancillary to that purpose and cannot be an end in themselves.
3. Although the proposed placement would generate observations and information about H, Phoenix Futures confirmed that it would not provide an independent assessment of the parents’ ability to care for her. The main focus would be parental detoxification and rehabilitation. The observations would inform assessments undertaken by others. H therefore was not the focus of the proposed assessment.
4. The court found no material change in Phoenix Futures’ approach from that considered in Re Y (A Child): S38(6) Assessment. The fact that the service had provided further information and family-focused support did not convert the proposed parental rehabilitation placement into an assessment of H.
5. In passing, the court stated that it would have been concerned about compliance with the registration requirements under the Care Standards Act 2000 and the Residential Family Centre Regulations 2002, as amended in 2013. It also considered that the proposed delay was not justified. A lengthy residential assessment requires strong justification, particularly where proportionate and more expeditious means of obtaining the necessary evidence exist.
6. The judgment did not discourage agencies from using Phoenix Futures through other lawful routes. A family placement there is materially different from a placement sanctioned under section 38(6).