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President gives guidance on extensions beyond 26 weeks in care proceedings

Judgment considers meaning of ‘necessary’ for assessments under s 38(6)

In Re S (A Child) [2014] EWCC B44 the President of the Family Division, Sir James Munby, has given guidance as to the factors which the court might consider when determining whether to extend care proceedings beyond 26 weeks. In the same judgment he returned to the meaning of 'necessary' for the purposes of determining whether to approve an application by the mother for an assessment under s 38(6) of the Children Act 1989.

S was the mother's fourth child. The mother's elder three siblings had been removed from her care a number of years ago. The mother is a vulnerable woman who struggles to care for herself, she has mental health problems, an anxiety disorder and low IQ.

S was born in October 2013. By the time of the final hearing care proceedings had been running for approximately five months. The court had the benefit of a local authority parenting assessment in respect of the mother and also a psychiatric assessment from an independently instructed expert. The local authority plan, supported by the Guardian, was to place the child with an extended family member with a view to a Special Guardianship Order being made following a trial placement.

 The mother was opposed to such a placement and she made an application for residential assessment under s.38(6) CA 1989.

Residential assessment application
Sir James Munby P reviewed the case law with regards to section 38(6), and went on to consider the amendments made by the Children and Families Act 2014. 

"19.Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:

"(7A)  A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly."

(7B)  When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a)  any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b)  the issues with which the examination or other assessment would assist the court,

(c)  the questions which the examination or other assessment would enable the court to answer,

(d)  the evidence otherwise available,

(e)  the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f)  the cost of the examination or other assessment, and

(g)  any matters prescribed by Family Procedure Rules."

The factors that the court should have regards to are set out in the new s.38(7B). The President went on to say:

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is "necessary" to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word "justly" only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So "necessary" in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3."

Scope to extend care proceedings beyond 26 weeks
The President also considered the wider context of the case. The timescale of proceedings had already taken five months.

The President considered the new provisions of the 2014 Act amending s.32 of the 1989 Act.

Regarding the new statutory framework he made a number of points:

Anthony Hand of College Chambers, Southampton (instructed by Tanya Hall, Bournemouth Borough Council legal services) represented the local authority; Andy Pitt (of Aldridge Brownlee Solicitors LLP) represented the mother; Nicola Preston (of Dutton Gregory) represented the father; and Steven Howard of 3 PB (instructed by Pengillys) represented the children's guardian.

For the judgment and summary, by Anthony Hand of College Chambers, from which this item is derived, please click here.