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K (A Child) [2007] EWCA Civ 697

Application for permission to appeal, with appeal to follow, order relating to a s38(6) application for an assessment. Application and appeal allowed.

The trial judge dismissed an application for an assessment on the grounds that it would not address the real issue, which was not the mother's parenting abilities, but her ability to address her drug and alcohol problems. Thorpe LJ rejected this reasoning as the relevance of the assessment sought had been affirmed by one of the experts and without an assessment, the essential requirement of fairness would be jeopardised.


Case No: B4/2007/1160
Neutral Citation Number: [2007] EWCA Civ 697

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 12th June 2007


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(DAR Transcript of
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Miss R Foulkes (instructed by Messrs Bowser Ollard & Bentley) appeared on behalf of the Appellant.

Mr I Martignetti (instructed by Peterborough City Council) appeared on behalf of the Respondent.

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Judgment (As Approved by the Court)

Lord Justice Thorpe:
1. This application brought in at short notice by my Lord raises a very small point that arises out of a judgment given by HHJ Yelton sitting in the Peterborough County Court on 25 May 2007. As he said in his judgment he was deciding an application under Section 38(6) of the Children Act 1989 for an assessment. The application was brought by the mother of I, the only child with whom the judge was concerned. I was born on 12 November 2006 and what the mother sought was a two-day assessment by a local specialist resource, Family Care. On the first day they would see the mother from ten in the morning to three in the afternoon and the same hours of attendance for her on the second day, but augmented by I's attendance for a couple of hours in the mid-morning.

2. Now the application was argued below by Miss Foulkes, who appears today to support her application for permission and to pursue any subsequent appeal. Mr Martignetti appears for the local authority and the guardian has helpfully submitted a written skeleton in which he supports the local authority's submission that this is not a case in which permission should be granted and further, if contrary to that submission permission were granted, not a case in which the appeal should be allowed.

3. The local authority seek a care order in respect of this very young child and in their final care plan, which was only completed yesterday, they say:

"In the light of the assessments undertaken within these proceedings in respect of the birth mother and the birth father which the Local Authority have relied upon, Local Authority indicated that it did not propose to undertake any further assessment of the parents because of their reluctance to address fundamental issues, such as the volatility of their relationship and substance misuse.

This position was supported by the Guardian and subsequently endorsed by the judge on 25 May 2007 when the mother's application for further assessment was refused."

4. That presentation is clearly open to the local authority as things stand and the consequence, as it seems to me, is that the hearing which is fixed for 2 July in front of HHJ Yelton, although time-estimated 5 days, will be something of a non-event. Crucial to the mother's capacity to put any sort of positive case to the judge on 2 July is participation in the assessment and a positive report. If that were to be the development, then the judge and the experts would have to consider anxiously what should be the outcome at the hearing. What should be the next step? What sort of way forward could be cautiously pursued? If the assessment takes place and the report is negative in its conclusion, then obviously the local authority's case is much fortified and it would be hard to see that any order could result in July other than a care order.

5. So that is the context within which the judge came to rule on the application. We do not have a transcript, there has not been time to procure one, but we do have a note taken by Miss Foulkes which, although said to be abbreviated in relation to the history, is not criticised by the other parties insofar as it records the judge's reasons for refusing the application. His reasoning is extremely brief. He simply said that he accepted the submissions for the guardian that the issue was not whether the mother can properly parent I but whether she has sufficiently changed the lifestyle issues, namely drug and alcohol abuse and domestic violence between the parents. So in conclusion he said:

"The Court will not be assisted by an assessment of the type sought because it does not address the issues before the Court."

6. Now that does not seem to me to be a sustainable reason for rejecting the application. The assessment undoubtedly addressed the issues before the court, although plainly it was not going to resolve longer term questions of the mother's capacity to change both sufficiently and consistently for the future. The relevance of the assessment is underlined by an addendum from one of the two experts in the case Dr Levy, who said:

"It is very encouraging to see that the mother has done so well in the contact sessions. On this basis, a residential assessment would prove to be another very helpful step."

Not only does that citation fortify Miss Foulkes's submission that this brief assessment would be helpful to the court but also it raises the anxiety that the judge has not in his judgment referred to this opinion, which was perhaps the strongest point to be advanced on the mother's application.

7. I am troubled that if this order is allowed to stand, the essential requirement of fairness to the mother in seeking to resist the care order application will be jeopardised. Her only forensic presentation at this late stage of the contested proceedings is to emerge well from the brief assessment and then to present the judge with the difficult question of what should follow. I think she should have that opportunity. I hesitate to criticise the judge, who has obviously a considerable knowledge of the case and whose very words of judgment are not before us. But there is sufficient in the arguments advanced by Miss Foulkes to persuade me that we should make a limited intervention in his case management simply to ensure that the assessment goes forward on 26 June. It is reassuring to read that Family Care will provide their written report in time for the trial.

Lord Justice Wall:
8. I agree.

Mr Justice Hedley:
9. I also agree.

Order: Application granted. Appeal allowed.