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Section 38(6) Assessments: The Good, the Bad and the Ugly

Cyrus Larizadeh, barrister, of 4 Paper Buildings considers developments in case law and practice in respect of assessment under section 38(6) of the Children Act

Cyrus Larizadeh, barrister, 4 Paper Buildings

Cyrus Larizadeh, Barrister, 4 Paper Buildings                  

The general principles, the law and procedure relating to assessments under section 38(6) of the Children Act 1989 have remained as set out in my 2008 article in Family Law Week and the funding provisions that govern section 38(6) assessments are, at present, as stated there. I highlight a number of more recent cases which illustrate some of the key issues concerning practitioners.

In 2008 I assessed the likely practical impact on section 38(6) assessments of Re G, the three funding cases of Lambeth, Calderdale and Sheffield and the LSC funding changes. We, who practise in the field of child protection, have, since 2008, seen the following changes to practice, law and procedure:

The current economic challenges have added to the difficulties and local authority budgets have suffered, not only from burdens caused by the removal of funding by LSC of residential assessments, but also from the government cuts. Social care budgets are under enormous strain.

A Local Authority v M (Funding of Residential Assessments) [2008] 1 FLR 1579 involved a local authority which was financially overstretched and which had overspent its social care budget and needed monies transferred into it from elsewhere within the council's budget.

Bodey J directed a 7 week residential assessment (£25,000) with a progress report rather than the recommended 12 week assessment. If part 1 was positive then it was to consider a part 2 of the residential assessment, taking the cost up to £50,000. The local authority was directed to fund all the costs of the said residential assessment.

He confirmed the LSC funding position that residential assessments will not be funded by them and indicated that the result of the changes are that local authorities will be burdened with such assessments where they are necessary.

He highlighted the position that no additional resources have apparently been provided to local authorities to offset their greater exposure to the expense of funding residential assessments.

He reminds us graphically of the opposition of the Family Justice Council to the LSC amendments. According to the Council:

i. Community based assessments in high risk cases are far less reliable than residential assessments and are more likely to generate delay.
ii. A parent who can manage a couple of hours observed contact at a family centre may not be a safe parent when required to provide 24 hour care.
iii. A residential assessment is a far more meaningful test of capability to meet the child's needs and provides more effective risk assessment in many cases.
iv. It therefore provides the best basis for safeguarding the interests of the child.
v. Simply because the LSC refuses to fund residential assessments the need for them in appropriate cases will not go away.
vi. The financial burden will of necessity shift back to local authorities.

The court proceeded to highlight the council's view that there is a risk of a funding gap which will seriously prejudice the interests of the children and parents involved. The court further referred to the council's warning that the Commission is exposing itself to a risk of judicial review and challenges under the Human Rights Act.

In care and adoption proceedings the issues for parents and children are of greatest possible significance.  As has recently been observed, to deprive a parent of his or her child is indeed 'a life sentence'.

There is a risk that that the court will only grant residential assessments in cases where there is a very strong chance of success in terms of likely outcome when sometimes the likelihood of success is not indicated through a viability assessment.  In other cases there will be either an inadequate community based assessment or a basic social work assessment since those dealing with child protection and family reunification will have to cut their cloth accordingly.

The overused obiter comment at paragraph 25 p 612 by Lord Scott in Re G [2006] 1 FLR 601 that 'there was no article 8 right to be made a better parent at public expense' must be set against the responsibility of a local authority to see that, where possible, children are reunited with their families and the underlying philosophy of the Children Act 1989 that wherever possible children should be brought up within their family.

The short term costs of refusing to fund a residential assessment must be offset against the enormous long term costs of placing and keeping children in foster care.

It is hard to reconcile the observation of Lord Scott with the clear message from the Court of Appeal in EH v LB Greenwich [2010] EWCA Civ 344, [2010] 2 FLR 661 that it is vital that a parent should receive proper support at an early stage provided he/she has sufficient qualities to be a good parent. The message here from the Court of Appeal is that local authorities must work properly with parents with potential and to give them proper support (para 36) . That must inevitably mean trying to assist parents to improve and supporting them in dealing with issues relating to their parenting .This is what we in the field call 'good old fashioned social work' – of course this service comes at public expense. Perhaps it may be true that there is no article 8 right to be made a better parent at public expense but it must be equally true that there is an important social responsibility at public expense to support parents to improve so as to ensure that,wherever possible, families are kept together.

In my opinion there is no question but that the burden of residential assessments in whose outcome each party is interested must be shared between the local authority and the public funding certificates of the parents and the children. There is a real risk that residential assessments will not be directed in some appropriate and meritorious cases due to the funding crisis faced by the local authorities and this in turn will inevitably result in the wrong assessment being directed and in some cases the wrong outcome.

The burden of residential assessments should be shared at least in some cases in accordance with the principles set out in the funding cases of Calderdale, Lambeth and Sheffield and at least in some proportion between the local authority and the LSC despite both the existing huge pressures on the legal aid budget and the intended further cuts. Whilst the focus of the legal aid budget must remain the provision of legal advice and representation, these assessments go to the root of the very cases which require such advice and representation. We must not return to the scenario of the past, which section 38(6) was created to address. As Lord Brown Wilkinson indicated in Re C  [1997] 1 FLR 1 a local authority should not control what evidence about a child should be obtained and placed before the court. Section 38(6) must not become toothless due to budget constraints and the courts should not become swamped with money defences. As things stand, I fear the worst.

The other cases of interest to practitioners include Re S (Residential Assessment) [2009] 2 FLR 397. Whilst the case of L- H (Residential Assessment) [2007] 1 FLR 1370 (discussed in detail in my 2008 article) is often relied upon by those seeking a direction under s.38(6), the case of Re S is now used by local authorities to defend a decision for no further assessment.

In Re S an initial psychiatric/psychological assessment recommended a residential assessment of mother and child. That residential assessment broke down due to the mother's lack of co-operation and her verbal abuse of staff and her failure to respond appropriately to the needs of the child. A subsequent social work assessment recommended a further residential assessment. That recommendation was withdrawn when the social worker learned of the mother's aggression towards other workers. The mother withdrew her application for a further residential assessment at that stage by agreement with the court. At a relatively late stage, the mother sought a further residential assessment for herself and the child and there was professional support for a further 3 month residential assessment. The judge however refused the mother's application. The mother appealed the decision and argued that there would be an evidential gap and unfairness as described by Re L and H.

The Court of Appeal included Wall LJ who had been central to Re L and H. Wall LJ distinguished between the two cases.   He found that in Re L and H the assessment was not going to interfere with the final hearing whereas in Re S the final hearing would have to be adjourned.  In Re L and H there had been an unequivocal, clear and unchallenged recommendation for a residential assessment. In Re L and H the care plan had been for adoption; in Re S the local authority plan was for a kinship placement with a grandparent in due course (which care plan remained the of a challenge by the Guardian). Wall LJ found that the trial judge had properly weighed the positives and negatives and had come carefully to a conclusion that no further residential assessment should be allowed. The judge was entitled to attach appropriate weight to the failed initial residential assessment and also to the element of further additional delay. He was also entitled to attach weight to the likely disruption to the child of being removed from the secure current placement, which would be lost if the assessment was directed and the child. Wall LJ did indicate that had this been an application for a first residential assessment matters might have been different.

I wish to highlight three cases in which the Court of Appeal directed further assessments of parents and children. These are not expressions in themselves of a general principle of law but an indicator of the general focus on fairness and ensuring that all the relevant information is before the court and that parents and children have been given every reasonable opportunity of presenting their cases, especially in circumstances where they risk losing their children forever.

Re B (Care Proceedings: Expert Witness) [2007] 2 FLR 979 the Court of Appeal allowed an appeal by parents to instruct their own expert in a case where the opinion of all the local authority experts in the proceedings involving the elder child was that the prospects for the new baby were extremely poor. The change in dynamic was that the mother had now decided to separate from the father and was seeking an assessment as a single parent. The mother argued on appeal that that refusal to allow her to instruct her own expert restricted the parents' ability to challenge the local authority  case. The Court of Appeal directed that they should be allowed to instruct an expert of their own choice. It was important that parents who were at risk of losing a child forever should have confidence in the fairness of the proceedings and that inevitably meant having confidence in the even handed nature of proceedings.  Furthermore, if the expert shared the opinion of the local authority experts, this might result in the 2 day final hearing being unnecessary or abbreviated.

In Re M (Assessment: Official Solicitor) [2009] EWCA Civ 315, [2009] 2 FLR 950 the Court of Appeal, which again included Wall LJ, allowed the appeal on behalf of the Official Solicitor in a case where his request for assessment had been refused by the trial judge on merit. The Official Solicitor had applied for a psychiatric assessment by a child and adolescent psychiatrist and a viability assessment by another residential unit even though a local authority instructed initial residential assessment of mother and child had failed and even though the local authority instructed psychologist had reported that the mother had zero chance of providing adequate parenting without two years of intensive psychotherapy. The Court of Appeal held nevertheless that the Official Solicitor had a duty to find out if the mother could parent the child, to investigate the case on the mother's behalf and to obtain whatever evidence he thought appropriate. The court should be slow to refuse such a request for further assessment as the consequence would be to deprive the incapacitated parent of any prospect of averting care and placement orders. One possible consequence of a further negative report would be curtailment of future costs.

In Re K (Care Order) [2007] EWCA Civ 697, [2007] 2 FLR 1066 the Court of Appeal, which again included Wall LJ, allowed an appeal by a mother against the refusal of a two day assessment of her parenting. The local authority and Guardian argued that the proposed assessment would be fruitless because of the parents' reluctance to address issues such as the volatility of their relationship and substance misuse. By contrast one of the experts was of the view that a residential assessment would be a very helpful step. The Court of Appeal held that the assessment was crucial to the mother's capacity to put forward a positive case to the judge dealing with the care application. The assessment would not resolve the longer term questions as to the mother's ability to change but it would be relevant to the court's determination of the next step. In the interests of fairness the mother was allowed to undergo this assessment. If the assessment was negative it would fortify the local authority case and reduce the future litigation in the case.

In each case the message appears to be that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made, especially if they run the real risk of losing their child forever. In at least two of the cases the prospects were extremely bleak with no expert/professional support and in at least two cases the evidence which the parent was seeking to challenge had been commissioned by the local authority and not on joint instruction.  In each case, the Court of Appeal held that the parent should have an opportunity to put forward a challenge/positive case. Finally, in each case the Court of Appeal concluded that a further negative outcome may reduce the scope of future hearings one way or other.

The difficulty appears to be that the Public Law Outline encourages the frontloading of assessments before proceedings are issued. This often means that the local authority identifies, instructs and funds the assessments they require without the parents or Guardians being able to participate properly and fairly in the commissioning and instruction process.

This situation may result in further assessments being directed to enable parents and children to instruct a more appropriate assessment process and/or to instruct their own expert to challenge the local authority instructed assessment and/or to address issues which were not identified as necessary by the local authority in their sole instruction.

The Cafcass crisis, with the reported delays in securing the effective services of an experienced Guardian in the early stages of a case when assessments are being directed and then as in some cases with the multiple changes of Guardian during the proceedings, may compound this problem.

Other cases of interest include Re A (Residential Assessment ) [2009] EWHC 865, [2009] 2 FLR 443.  In this case, Munby J highlighted the fact that a section 38(6) assessment could be directed to take place in a framework other than in a residential unit or in a community based assessment unit. In appropriate cases the assessment could take place in a family setting. In such cases the proposal must not only be appropriate but also safe. The justices had directed such an assessment in a family setting to determine how a child had settled in with an aunt and a great grandmother and also whether they could supervise A's contact with the parents before they could decide whether to make an special guardianship order. Interestingly the assessment directed in the family setting was to be by the social worker and the Guardian. Under s.38(6) the Court has jurisdiction to name the assessor(s) (Re W [1998] 2 FLR130).

Munby J also made it clear that it was emphatically not the case that section 38(6) assessments – even with unusual features –  were better suited for decision in the county court than the family proceedings court. I agree with Munby J that such applications can be heard by lay Justices, and such applications should certainly not be transferred as a matter of course for interim determination by the county court.  However, in the nearly two decades of specialising in this type of application, I have experienced lay Justices struggling at times with the legal principles and arguments in this area –  even with legal advice. They do also struggle at times with the detailed factual balancing exercise required in such cases. The intention by Lady Hale in Re G to avoid delay and also to keep such hearings as short as possible is sadly not always possible because these decisions are made by lay Justices. There is a real risk of an appeal from a lay bench when they fail to apply properly the case law and principles involved, as well as failing to carry out effectively the complex factual analysis that is required in some cases. I am of the view that potential deficiencies can be remedied or reduced at times by more effective and timely presentation in written submissions of the law and factual arguments. Munby J does not however suggest that interim transfers of section 38(6) applications should not take place when these are strictly necessary. I agree that each case depends on its own facts in this regard.

In Re J (Residential Assessment: Rights of Audience) (2010) 1 FLR 1290 the Court of Appeal (again with Wall LJ giving the leading judgment) provided one of the few recently reported cases in which the Court upheld a decision not to allow a further assessment by an independent social worker after a negative residential assessment of the mother and her ninth child arranged by the local authority. The mother had had ten children in all and had been subject to a number of psychological and parenting assessments in care proceedings relating to her older children.  All of these assessments had concluded that the mother was not in a position to care properly for her older children. Shortly after the birth of her ninth child, she and the child were given the chance of a residential assessment, the outcome of which was negative. The mother then sought a further assessment by an independent social worker. The Court of Appeal, in refusing the appeal, held that there was no question of the mother having a right to a further assessment. The issue was whether the further assessment would assist the Court in reaching the right conclusion in relation to the child in question.

In Re J the Court of Appeal found that the first instance judge was not plainly wrong in deciding that an assessment by an independent social worker could not effectively contradict the evidence which the court already had.

The law has remained essentially the same.  Local authorities and the LSC are still funding assessments subject to their resource limitations and guidelines and the courts are doing their best to ensure that assessment and final outcome decisions are made properly on the basis of all the necessary information. Children are still being reunited with their families after successful assessments. The challenge is to keep the good ship 38(6) and all who sail in her afloat as we begin to hit the troubled waters ahead.