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Council fails in appeal over direction by judge that parents and child should undergo residential assessment

A Family Court judge has rejected an appeal brought by a local authority against a case management decision by a district judge pursuant to s 38(6) of the Children Act (1989) directing that the parents and the subject child (“L”) should undergo a residential assessment.

The local authority relied on six grounds of appeal over the decision of District Judge Parker on 22 March 2021:

“1. The residential assessment at Symbol was an assessment of the parents, and their amenability to further assessment with adjustments to their learning styles - its focus was not assessment of the child and it fell outside the scope of s.38(6) of the Children Act 1989

2. The Court did not consider whether the residential assessment at Symbol was necessary to assist resolve the proceedings justly - as required s.38(7A) of the Children Act 1989

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3. The residential assessment at Symbol did not satisfy the requirement of s.38(7A) of the Children Act 1989 that it be necessary to assist resolve the proceedings justly

4. The Court did not have regard to its ability to direct a further parenting assessment of the parents without requiring residential assessment of the child

5. The Court did not undertake a sufficient weighing exercise of the statutory factors to be considered under s.38(7B) of the Children Act 1989 - it appeared to regard the availability of the residential assessment at Symbol, and the potential for it to foreclose early if it was not working, to be the determining criteria

6. The Court did not have sufficient regard to the likely impact of the residential assessment on the welfare of the child, including the impact if the residential assessment failed” [emphasis in the judgment]

The parents opposed the application by submitting that the local authority’s appeal had no merit. They said the judge was entitled to order a residential assessment and in the circumstances of this case was entirely correct to do so. His decision was not one that could or should be interfered with by the appellate court.

The guardian submitted that she had accepted the decision of the judge and did not support the local authority on grounds one and four. However, she maintained her position that was argued before the judge, by questioning the necessity of such an assessment.

In J (A Child: Residential assessment) [2021] EWFC B18 His Honour Judge Moradifar said the appellant council had not demonstrated that it had an arguable case or a real prospect of success on appeal. He therefore refused its application for permission to appeal on all six grounds of appeal.

HHJ Moradifar said: “These applications, especially when made in the latter stages of proceedings, are often made in challenging circumstances with strong competing arguments. Family judges are often challenged by the pressures of their list and time to provide detailed judgments as recognised by the authorities that I have referred to above. In this case, the judge was in my view correct to direct an assessment pursuant to s38(6) of the Act and the overall decision is not open to challenge.

“I commend the local authority for taking a proactive role, as it must, in pre-proceedings. I recognise that the local authority has identified the needs of the parents and has sought to support and assess the parents in parenting L. The adequacies of the local authority’s approach are yet to be determined and may be the subject of further consideration by the court. As local authorities begin to implement the Best Practice Guides of the President of the Family Division’s Public Law Working Group, we should observe a greater focus on the multidisciplinary approach to families that will see many families diverted away from court proceedings. Furthermore, those cases that are the subject of proceedings, should begin proceedings with a robust, fresh and reliable assessment that negate the need for further assessments within proceedings.”

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