Local authorities and s.38(6) assessments

The Court of Appeal has issued a timely reminder in a case where a judge had ordered a local authority to fund a s38(6) assessment, writes Rebecca Cross.

37422814 m 146 x 219It has become increasingly difficult to persuade the Court to grant ANY application for an expert report, let alone an application under section 38(6) for an assessment of the child. This issue was revisited by the Court of Appeal in Re Y (A Child) (S.38(6) Assessment) [2018] EWCA Civ 992.

A consultant psychiatrist recommended that the parents and J (aged 7 months) should be assessed at Phoenix Futures, an agency that specialises in drug addiction. Of the seven questions in the letter of instruction, only one related to J and her mother. The others dealt solely with the mother.

The local authority opposed the application on the basis that this was not an assessment of the child and, therefore, fell outside the Court’s powers under section 38.

The Judge at first instance granted the application and ordered the local authority to fund the assessment.

The local authority successfully appealed. The Court of Appeal referred to:

(a) Re C (a minor) (Interim Care Order: Residential Assessment) [1997] 1FLR 1, where the House of Lords stated that “the proposed assessment must...be an assessment of the child”.

(b) Re G (Interim Care Order) [2006] 1 FLR 601, where House of Lords stated:

i. that an assessment to give a parent the opportunity to change through therapy does not come within 38(6);

ii. what is required is an assessment of the child, including her relationship with her parents, risk, and how any risk can be managed.

In Re Y, the Court of Appeal stated that the court should ask itself two questions:

(a) is this a proposal for an assessment that falls within s38(6); and

(b) if so, is the assessment necessary to assist the Court to resolve the proceedings justly?

In Re Y, the Court of Appeal found that what was proposed was a unit that would assist the parents to become drug free and NOT a unit designed to assess the mother and the child.
Accordingly, the proposed assessment fell foul of both Re C and Re G, as well as section 38(6) itself. In addition, there was a question mark as to whether the assessment was necessary as there was already a wide range of information available to the court, namely:

(a) evidence from the social worker;

(b) evidence from the Westminster Drugs Project;

(c) hair strand and urine tests;

(d) an independent social worker’s assessment; and

(e) a psychiatric assessment.

Accordingly, the appeal was allowed.

Rebecca Cross is a barrister at St Ives Chambers.

https://www.stiveschambers.co.uk/barristers/rebecca-cross/
https://www.stiveschambers.co.uk

 

Insight December 2018 Cover

This article was first published in the December 2018 edition of Local Government Lawyer Insight, which can be accessed at http://www.localgovernmentlawyer.co.uk/insight

Insight is published four times a year and is circulated free-of-charge to all Local Government Lawyer newsletter subscribers (click here to subscribe) in electronic format. A single hard copy is also circulated to all local authority legal departments in England and Wales.

Also in this issue:

Sands of time
How can local government legal ensure its own survival?

Interview: Suki Binjal
LLG President on the future for local government lawyers

Time to shine
Why local government lawyers shouldn't fear management roles

Through the looking glass
The impact of Sir Cliff Richard’s victory over the BBC for councils’ relationships with the press

Look North
Behind the North’s first local authority ABS

Spotlight: Child Protection

  • Order in Court - good practice, bad practice and the pitfalls when it comes to local authorities and public law proceedings.
  • s20: Some welcome guidance from the Supreme Court
  • Local authorities and s.38(6) assessments, p24
  • Taking the strain? Is a crisis looming for local authority child care lawyers?

Spotlight: Place

  • The role of local authorities in housing supply
  • Unlocking stalled development sites
  • Property market snapshot
  • The importance of Place and revenue growth for local government