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Section 38(6) Applications – Further fine-tuning

Sally Gore, barrister, of 14 Gray's Inn Square, examines developments concerning applications for assessment under section 38(6) of the Children Act 1989 culminating in the Court of Appeal's clarification in S (A Child) [2011]

Sally Gore, barrister, 14 Gray's Inn Square

Sally Gore, Barrister, 14 Gray's Inn Square

Questions concerning the interpretation of section 38(6) of the Children Act 1989 have frequently reached the appellate courts.  The high point for parents was probably the decision of the Court of Appeal in 2007 of Re L and H (Residential Assessment) [2007] EWCA Civ 213, [2007] 1 FLR 1370.  This led to many more challenges by parents following failed applications under s38(6).  More recently, the Court of Appeal has sought to correct the interpretation that had been given to that decision.

The broader parameters of s38(6) Children Act were established some time ago.  In Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1, the House of Lords rejected a narrow interpretation of s38(6).  The purpose of the section is to enable the court to obtain evidence that is required for its final decision-making and it should therefore be utilised by the court to order or prohibit any assessment involving the child, including a parenting assessment. In Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 FLR 601, the House of Lords limited the scope of the subsection to work whose primary purpose was an assessment; it is not to be used where the work being imposed is in fact 'treatment' or therapy.

In Re M (Residential Assessment: Directions) [1998] 2 FLR 371 at 382, Holman J identified four questions that were pertinent to the question of whether an assessment should be ordered:

i. Does the assessment properly fall within the scope of s38(6) as defined by the House of Lords?

ii. The proposed assessment must not be contrary to the overall best interests of the child, taking a wide and long-term, as well as short-term view of those interests.

iii. Is the assessment necessary to enable the proper discharge of duty in deciding if a care order is appropriate?

iv. It must not be unreasonable to require the local authority to be involved with, and, if ordered, to fund the proposed assessment.

Re L and H (above) was a successful appeal against a decision at first instance when an assessment had been refused after the judge wrongly characterised the proposed work as therapy rather than assessment.  The 'assessment' element of the proposed work would look at the mother's practical parenting capacity and at the impact on the parents' relationship of caring for a young baby, issues which went, as the Court of Appeal said, 'to the heart of the critical question in the case – namely whether the child could be cared for safely by his parents' (at p.1393). 

Wall LJ (as he then was) went on to make the observations that continue to be relied upon by parents seeking a direction under s38(6):

"[W]hat is equally important, in my judgment, is that the court should be astute to ensure that the case has been fully investigated, and that all the relevant evidence necessary for the decision is in place" (p. 1394)

"There will, in my judgment, of course , be cases in which to order an assessment under s38(6) of the 1989 Act will be a waste of time and of public funds… [I]f the professional evidence in the instant case is unanimous that a s 38(6) assessment would serve no purpose, it would be unlikely that the judge could have been criticised for refusing to order one" (p.1395)

"[I]t is manifestly in the interests of M to see if his parents are able to care for him, and it is the responsibility of the court to ensure that it has the best evidence on which to reach a conclusion about his welfare.  It is also procedurally fair for his parents to be given the opportunity to demonstrate that they can overcome their manifest difficulties and care for him, and it would, in my judgment, be unfair were they to be denied that opportunity."

In this case, the evidence of the psychologist in the case had advised that there should be a residential parenting assessment, although this was opposed by the local authority and the child's guardian.

Many of the cases that followed at appellate level shortly after the decision in Re L and H are relied on in support of the approach of giving parents every opportunity to present a positive case at a final hearing by allowing assessments under s38(6).  The Court of Appeal allowed the appeal in Re B (Care Proceedings: Expert Witness) [2007] 2 FLR 979, suggesting that it was important that parents who were at risk of having a child permanently removed had confidence in the proceedings.  In this case, however, since the events which the local authority experts said ruled the mother out, there had been a significant change in her circumstances in that she had separated from the father and was now seeking an assessment as a sole carer.

In Re K (Care Order) [2007] EWCA Civ 697 the Court of Appeal allowed an appeal by a mother against a refusal of a two-day parenting assessment which, it was acknowledged, would not inform as to her long-term parenting capacity but would inform the next steps in the proceedings.  Again, the Court of Appeal was concerned that the assessment was crucial if the mother was to have any opportunity of putting forward a positive case at the final hearing.  In both this case and in Re B, the Court of Appeal took the pragmatic view that allowing the assessment might well limit the duration and scope of future hearings.

Re M (Assessment: Official Solicitor) [2009] EWCA Civ 315; [2009] 2 FLR 950 was another successful appeal on behalf of a parent, albeit that the outcome in this case was clearly influenced by the fact that it was the Official Solicitor who sought the further assessment.  The approach taken by the Court of Appeal was that the Official Solicitor had a duty to investigate whether there was evidence that the mother could parent the child and so should be given the opportunity to obtain such evidence as he felt was appropriate.  If the Official Solicitor required such an assessment, "a  judge should be slow to refuse it" (para. 8).

Not every appeal, however, has been governed by the notion that parents should be given an opportunity to put forward a positive case in relation to their parenting.  In S (A Child) [2008] EWCA Civ 1078 Wall LJ (as he then was) refused an appeal based on Re L and H in which it was argued that the judge's refusal to make a s.38(6) direction left a 'gap' in the evidence.  In this case, the Court of Appeal was clearly concerned about the delay to the final hearing that would result were the appeal to succeed, but was in any event satisfied that the judge had exercised his discretion properly.  In particular, this case could be distinguished from Re L and H because in that case, there had been an unequivocal recommendation by an expert in favour of a further assessment.

In Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210, [2010] 1 FLR 1290 the Court of Appeal refused an appeal against a decision not to allow a further assessment following a negative assessment of a mother with her tenth child, who had already been found not to have the capacity to parent her older children.  In this case, the Court of Appeal was of the view that a further assessment would add nothing of significance to the information before the trial judge at a final hearing.

Equally, Re L and H did not lead the Court of Appeal in W and M (Children) [2009] EWCA Civ 1278 to criticise the judge at first instance who had applied the analysis set out in Re M [1998] 2 FLR 374 discussed above.  In that case, the refusal to grant further assessment had focused on one of the questions identified by Holman J in Re M, namely the impact that this would have on the children, and particularly the delay that it would cause.  This decision was upheld on appeal.

The watershed came last year, when the Court of Appeal sought to clarify the extent to which the decision in Re L and H could be used to assist parents.  In S (A Child) [2011] EWCA Civ 812, a mother appealed against the refusal of an application for a viability assessment as a precursor to a residential assessment following evidence from a psychiatrist and a psychologist that the mother had not made sufficient progress in addressing the difficulties that had led to her two older children being permanently removed from her care.  Her appeal relied on the decision in Re L and H and it was argued on her behalf that, without this assessment, she would be denied the right to a fair trial at the final hearing.  She argued that this was a crucial piece of evidence to enable her to present a case that, in spite of her past, she was capable of parenting this child.

In a unanimous judgment, the Court of Appeal rejected this argument.  The judge at first instance had been alive to the principles and practice of effective case management under the Public Law Outline.  The judge had been right to accept the evidence of the experts that a residential assessment would not assist the court in understanding how the mother would parent in the community.  Commenting on Re L and H, Black LJ remarked that the Court of Appeal in that case had been clear that it was not purporting to lay down general guidelines for s38(6) applications.  A court hearing such an application should apply the principles in Re C and Re G to the facts. She explicitly rejected the submission that following Re L and H the courts had focused on ensuring that parents should be given every possible opportunity to present a positive case; a parent facing permanent removal of their child should not have a further parenting assessment as of right.  Black LJ sums up the position (at para. 93) as:

"In so far as the earlier of the Court of Appeal decisions to which I have referred contain passages which might be taken to suggest that a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority, I am sure that this as not what the court intended.  The President made that clear in the passage I have just quoted from Re J.  Still less is there a principle such as that for which Mr Twomey contends, namely 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'.  Such a principle is unworkable not least because, sadly, there are cases in which parents are plainly not able to care for their children and in which no amount of assessment or evidence gathering will enable them to put forward a positive case."

This case does not in fact say anything new or anything different from Re L and H.  It was also not the first time that the Court of Appeal had pointed out that the decision in Re L and H did not support assessments of parents where they would serve no purpose: see Re B (A Child) [2008] EWCA Civ 928.

Questions of assessments under s38(6) have continued to reach the appellate courts, albeit that the more recent decisions have consisted more of fine-tuning the scope of this subsection than the earlier and more significant cases referred to above.

Re L and H represented a high point for parents.  However, this came more from the selective use of parts of the judgment in this case than from the decision considered in its entirety.  This is underlined by Guidance issued by the President (President's Guidance Bulletin No. 2: Case management decisions and appeals therefrom) in which he says (at paragraph 27) "[w]hat is important to note about this decision is that it is a rare example of where we took the view that the judge had made an error of law".  This related to the erroneous characterisation of the assessment in question as therapy rather than assessment, coupled with the fact that the first instance judge had given no weight to the recommendation by the psychologist in favour of a residential assessment.  The President goes on (at para. 30 of this Guidance) to say "[o]ur decision in Re L and H, therefore, was not primarily concerned with the reversal of the judge's discretionary judgment".

The Court of Appeal in S (A Child) was not attempting to row back from the Re L and H decision; rather, it sought to clarify it and to correct the interpretation that had been placed on it, in some cases at least, in the intervening period.  A survey of a number of cases heard, mainly in the Court of Appeal, in the period between Re L and H and S suggests that in fact the Court of Appeal had recognised for some time that parents' representatives were seeking to overstate the significance of Re L and H.